The Racial Justice Act - What it is, Current Challenges, and Future Opportunities

Editor's Note: Author Paul Garcia writes about what the Racial Justice Act is and it's possibilities in this piece. Paul is currently incarcerated in Valley State Prison in California.

Part 1 - What is the California Racial Justice Act? 

The California Legislature passed the California Racial Justice Act of 2020 (“RJA") because it found that “discrimination in our criminal justice system based on race, ethnicity, or national origin. . .has a deleterious effect not only on individual criminal defendants but on our system of justice as a whole," (2020 Stats., ch. 317 § 2.) It also found that while racial bias is widely acknowledged as intolerable in our criminal justice system, it nevertheless persists because courts generally only address racial bias in its most extreme and blatant forms. More and more judges in California and across the country are recognizing that current law, as interpreted by the high courts, is insufficient to address discrimination in our justice system." (2020 Stats., ch. 317 2.)

The RJA adds Penal Code section 745 which prohibits the state from seeking or obtaining a criminal conviction or sentence on the basis or race, ethnicity, or national origin.

"Commencing, January 1, 2024, to all cases in which, at the time of the filing, the petitioner is currently serving a sentence in the state prison or in a county jail or committed to the Division of Juvenile Justice for a juvenile disposition, regardless of when the judgment or disposition became final." (§ 745, su.bd. (j 3).)

Under the RJA: “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." (§ 745,. subd. (a)) To make a claim the defendant must prove by a preponderance of the evidence any of the following:

“(1)The judge. an attorney in the case, a law enforcement officer- involved in the case, an expert witness, or juror exhibited bias or animus towards the defendant or use of the defendant's race, ethnicity. or national origin.

(2)During the defendant’s trial, in court and during the proceedings, the judge, an attorney in the case, a law enforcement officer involved in the case, an expert witness, or juror, used racially discriminatory language about the defendant's race, ethnicity, or national origin, or otherwise exhibited bias or animus towards the defendant because of the defendant's race, ethnicity, or national origin, whether or not purposeful. This paragraph does not apply if the person speaking is describing language used by another that is relevant to the case or if the person speaking is giving racially neutral and unbiased physical description of the suspect.

(3)The defendant was charged or convicted of a more serious offense than defendants of other races, ethnicities, or national origins who commit similar offenses and are similarly situated, 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, ethnicity, or national origin in the county where the convictions were sought or obtained.

(4)(A) A longer or more severe sentence was imposed on the defendant than was imposed on other similarly situated 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, ethnicity, or national origin than on defendants of other races, ethnicities, or national origins in the county were the sentence was imposed.

(4)(B) A longer or more severe sentence was imposed on the defendant than was imposed on other similarly situated individuals convicted of the same offense, and longer or more severe sentences were more frequently imposed for the same offense on defendants in cases with victims of one race, ethnicity, or national origin than in cases with victims of other races, ethnicities, or national origins, in the county where the sentence was imposed" (§ 745, subd. (a) et seq., foot-notes added.)”

In passing the RJA, the Legislature expressly intended to ensure that individuals have

access to all relevant evidence, including statistical evidence, regarding potential discrimination in seeking or obtaining convictions or imposing sentences." (See Stats 2020. ch 313 §2(j).)

The next section of this RJA article will discuss the issues with obtaining the statistical data necessary to establish a claim under the RJA from the County of Santa Clara.

Part 2 - The RJA in Santa Clara County

The California Racial Justice Act ("RJA") was designed to address discrimination in our justice system. (Penal Code, § 745; 2020 Stats., ch. 317 § 2.) There are three provisions under Penal Code section 745, subdivision (a) that require statistical data from the county of conviction;

(1) "The defendant was charged or convicted of a more serious offense than defendants of other races, ethnicities, or national origins who commit similar offenses and are similarly situated, 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, ethnicity, or national origin in the county where the convictions was sought or obtained" (§ 745. said. (a)(3));

(2) "A longer more severe sentence was imposed on the defendant than was imposed on other similarly situated 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, ethnicity, or national origin than on defendants of other races, ethnicities, or national origins in the county where the sentence was imposed" (§ 745, subd. (a)(4)(B).)

(3) "A longer or more severe sentence was imposed on the defendant than was imposed on other similarly situated individuals convicted of the same offense, and longer or more severe sentences were more frequently imposed for the same offense on defendants in cases with victims of one race, ethnicity, or national origin than in cases with victims of other races, ethnicities„ or national origins, in the county were the sentence was imposed," (§ 745, subd. (a)(4)(B).)

In California, approximately two-thirds of the people on death row are people of color. (See www.deathpenalty.org/facts.)The Legislature findings with the RJA make the goal of including this type of violation in the law: "to reject the conclusion that disparities in sentencing outcomes are inevitable, and to work to eradicate them" (2020 Stats., ch. 317 § 2. subd. (i).)

In 2016, SCCDA D.A. Rosen even acknowledged the racial inequities exist in Santa Clara County. (See 10/28/16 Jennifer Wadsworth "Just-Released Study Points to Racial Inequities in Santa Clara County Prosecution Rates".)

D.A. Rosen: "A hard question is coming from our community and from communities across America, is our justice system fair to everyone?" "One study cannot answer that question, but it is a step, here in our office and in our community, toward coming to grips with the parts of our system where there is racial inequity.” (Ibid.)

D.A. Rosen: "We are committed to asking hard questions of ourselves” “and presiding solutions in the days to come." (Ibid.)

"[F]ollowing the murder of George Floyd, the District Attorney's Office published its fourth report on ‘Race and Prosecutions.’ In their report, DA Jeff Rosen wrote: 'Prosecutors, police officers, and of course, this District Attorney need to ask ourselves if we are part — intentionally or not — in these destructive and despicable racial injustices: " (Hunt, Sophia,. Micayla Bozeman, and Matthew Clair, 2022. "Racial Disparities in Arrests in Santa Clara County, California. 1980-2019." Court Listening Project, Report No_ 3, emphasis added)

However, the statistical data is not readily available. Many incarcerated individuals in the California Department of Corrections and Rehabilitation do not know where to begin when it comes to gathering charging and sentencing statistical data to support a RJA claim.

In October 2022 I began my quest to obtain 10A statistics specific to Penal Codes in my case through the use of the California Public Records Act ("CPRA"; Gov. Code, §§ 7921,000.)1 to obtain the aforementioned data from the SCC DA. However, on December 12, 2022 the County Counsel Office for Santa Clara County (Ms. Shang Heller—Deputy County Counsel, SBN:302065) advised via letter that a majority of the information that I sought could not be queried from the Santa Clara County District Attorney's Office (SCCDA) case management system and identified what the SCCDA could provide. Thereafter on March 8. 2023, the County of Santa Clara/SCCDA provided:

"Attachment 1 responds to Item 1: 'The number of individuals charged with any Special 'Circumstance-3 Allegation under Penal Code section 190.2 et. Seq. for the time period of January 1, 2008 through September 30, 2022 (provide the requested numbers by year).’ Attachment 2 responds to Item 2: "The percentage by race of all individuals charged with any Special Circumstances Allegations under Penal Code section 190.2 et seq. for the time period of January 1, 2008 through September 30, 2022 (provide the requested numbers by year)." (3/8/23 Santa Clara County CPRA response (re: sentencing statistics).)

According to the SCCDA's "Race and Prosecution's" reports "there are higher percentages of Black/African American and Hispanic/Latino defendants prosecuted than their percentage in the population." Based on the SCCDA's report it is apparent that Hispanic/Latino make up the majority of both misdemeanor and felony defendants in the County of Santa Clara.

County of Santa Clara

Year(s) Hispanic/Latino Hispanic/Latino Hispanic/Latino

Misdemeanor  Defendants% Felony Defendants % Population%

2013-15 26.6%                   46                                              44%

2017 27%                               46%                                          45%

2018      26,1%                                    50%                                          51%

2019       25.30%                         51.35%                       52%

2021         24%                               55%                                          53%

The data is clear. Hispanic/Latinos comprise approximately one fourth of the Count of

Santa Clara's population, but make up approximately half of all felony defendants. This SCCDA report further claimed that their Crime Strategies Unit will be conducting further analysis.

SCCDA: "This data raised several questions that the Crime Strategies Unit will investigate in the coming year. The group BetaGov will examine issuing and plea bargaining to see if any system bias is present that may be impacting prosecution practices. Racial disparities in prosecution are a major focus of the Crime Strategies Unit and will continue to be examined at each step of a criminal prosecution including charging, plea negotiations, trial and sentencing.”

The SCCDA is obviously aware that them is an issue of -Hispanic/Latino defendants being prosecuted more than their percentage in the population. The SCCDA (specifically their Crime Strategies Unit) possess the data to establish a claim pursuant to section 745, subdivision (a)(3), (a)(4)(A), and (a)(4)(B). However, they refuse to provide the data.

The next section of this RJA article will discuss the issues that exist with the RJ A process based on experiences or CDCR incarcerated individuals.

Part 3: The Problems of Obtaining Statistical Data for the RJA

As discussed in section one and two of this article, the California Racial Justice Act (RJA) was designed to address discrimination in our justice system. (Penal Code, § 745; 2020 Stats., ch. 317 § 2.) However, this new legislation is causing more questions than legal redress. Many incarcerated individuals have begun this complex litigation process without the assistance of counsel. Counsel is not free, and many incarcerated individuals do not have the financial resources to hire counsel for RJA assistance. Here, at Valley State Prison ("VSP") in Chowchilla, California many individuals have begun this litigation process by focusing on the three provisions under Penal Code section 745, subdivision (a) that require statistical data from the county of conviction:

(1)  "The defendant was charged or convicted of a more serious offense than defendants of other races, ethnicities, or national origins who commit similar offenses and are similarly situated, 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, ethnicity, or national origin in the county where the convictions were sought or obtained" (§ 745, subd. (a)(3));

(2)  "A longer more severe sentence was imposed on the defendant than was imposed on other similarly situated 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, ethnicity, or national origin than on defendants of other races, ethnicities, or national origins in the county were the sentence was imposed" (§ 745, subd. (a)(4)(A)); and

(3)  "A longer or more severe sentence was imposed on the defendant than was imposed on other similarly situated individuals convicted of the same offense, and longer or more severe sentences were more frequently imposed for the same offense on defendants in cases with victims of one race, ethnicity, or national origin than in cases with victims of other races, ethnicities, or national origins, in the county where the sentence was imposed." (§ 745, subd. (a)(4)(B).)

Incarcerated individuals have decided to purse RJA remedies by either filing a writ of habeas corpus petition pursuant to Penal Code section 1473(e), or a preceding discovery motion pursuant to Penal Code section 745(d) in order to obtain charging, and conviction data from their county of conviction County's District Attorney's office.

Generic (i.e., the same petition except for the individual's personal information/conviction data—see § 1473(e) generic petition) RJA writ of habeas corpus petitions have been filed pursuant to Penal Code section 1473(e) in Alameda, Los Angeles, Monterey, Riverside, Sacramento, San Diego, Santa Clara, San Joaquin, and Yolo counties. The RJA has not been consistently applied in all 58-counties in California. For example, in Los Angeles, and San Diego counties, incarcerated individuals were appointed counsel and are currently actively litigating their RJA claim. However, in Alameda, Monterey, Riverside, Sacramento, and Santa Clara counties the RJA habeas petitions have been denied without any appoint of counsel.

"The petition shall state if the petitioner requests appointment of counsel and the court shall appoint counsel if the petitioner cannot afford counsel and either the petition alleges facts that would establish a violation of subdivision (a) of Section 745 or the State Public Defender requests counsel be appointed. Newly appointed counsel may amend a petition filed before their appointment." (§ 1473, subd. (e), emphasis added.)

The superior courts in the denial counties claimed in their denial orders that a prima facie (i.e., initial threshold met that a potential violation occurred) case has not been made because there was no county specific charging, and sentencing data presented in the petition. Without counsel assistance it is nearly impossible to obtain the charging, and sentencing data necessary to prevail on a RJA statistical data claim pursuant to Penal Code section 745(a)(3), (a)(4)(A), and (a)(4)(B). The question that arises: why are Los Angeles and San Diego counties receiving the habeas petition appointing counsel, and others are simply denying the petition? It is imperative that the RJA procedures be consistent regardless of the county of conviction.

The second avenue of RJA litigation contemplates the filing a Penal Code section 745(d) motion for discovery to obtain charging and sentencing data from the district attorney's office. (See, e.g., § 745(d) generic motion.) Each county district attorney has access to statistical data. It may not be in a readily accessible digital format. The data may have to manually compiled from paper records/files. Yes, it will take time, money, and resources for each county District Attorney's office to create a digital record of the Penal Code specific charging and sentencing data. However, it will only have to be done once. After this, data is collected and digitized it can easily be disclosed to any requesting party. The data is the data. Without the charging and sentencing data being disclosed by each county District Attorney's Office it will be nearly impossible to prevail on a RJA claim pursuant to Penal Code section 745(a)(3), (a)(4)(A), and (a)(4)(B). VSP incarcerated individuals that were convicted out of San Clara, San Joaquin, Riverside Sacramento, and Yolo counties have submitted Penal Code section 745(d) motions for discovery to compel their county District Attorney's office to provide charging and sentencing data. Only Yolo County has appointed counsel and is moving the Penal Code section 745(d) discovery motion along. The other counties have denied the motions without appointing counsel, and without ordering briefing. These denials are currently on appeal in the Third, Fourth and Sixth District Court of Appeals.

The RJA should not be difficult to implement. County District Attorney's should not be hesitant to undertake the data collection steps, as it only has to be once. Once the data is collected and analyzed it will determine if RJA relief is warranted. Each county District Attorney should embrace the RJA, and not work against it.