Jayadev: Santa Clara County DA’s Office undermines racial justice efforts

This May marks four years since the killing of George Floyd and the largest social uprisings for racial justice in the history of the country. In Santa Clara County, local officials and law enforcement administrators responded quickly with public proclamations both acknowledging the existence of racial bias, as well as declaring policy reforms to address them.

District Attorney Jeff Rosen, in particular, made media statements about the role and culpability of prosecutors in both contributing to the racial disparities in the carceral system, and the requirement of his office to address issues of systemic racism.

In an editorial published in the Mercury News in 2020 entitled, “What Will We Do When the Floyd Protests Die Down?” he wrote, “…Every year we put out a report on Race and Prosecutions. Every year it shows racial disproportion in our system…” The writing went on with the tone of an impassioned civil rights leader, even down to the call and response questions that may have been belted with a megaphone at a march or rally. “What will we do about it?  What have we done?” he asked.

That same year, Gov. Gavin Newsom was moved to respond to the ground up call to act — signing into law the Racial Justice Act (RJA). The RJA allows people charged with a crime to raise issues of bias or discrimination based on race, ethnicity or national origin in their cases. In many ways, it was a legislative answer to DA Rosen’s seemingly rhetorical questions about what a district attorney’s office could do to address racial bias in the system — 2024 is the first year RJA also applies for people who have already been convicted.

In Santa Clara County, racial and ethnic minorities have been dramatically overrepresented in arrests, prosecutions and jail and prison sentences. Studies from recent years, including those conducted by the district attorney’s office, show Black people make up 3% of the county population, yet account for 11% of felony cases and 9% of misdemeanor cases. Latinos comprise 26% of the population, yet represent 44% of all felony defendants. In 2021, the arrest rate for Black people was 5.3 times higher than the arrest rate of white people.

Yet despite the apparent harmony in the rhetoric from DA Rosen shortly after the George Floyd protests and the purpose of the Racial Justice Act that seemed to have the same aim, the district attorney’s office has vehemently opposed every single RJA claim — Penal Code Section 745 — brought to them by defense attorneys on behalf of community members.

Even more alarming is its current approach shared through a wave of opposition briefs that attack RJA.

The DA argues that by calling on the acknowledgement of bias, including implicit bias and its impact on people of color, the RJA victimizes the district attorney’s office. The most recent motion was for a case regarding an elderly Black woman with medical issues who brought an RJA claim against the arresting officers, who called her “lazy” before arresting her. The brief submitted on behalf of DA Rosen states, “If the court adopts Defendant’s proposed scope of bias, where an exhibition may be premised merely on unconscious or implicit bias, then section 745 violates the People’s right to due process.”

The argument contradicts the complicity of system actors DA Rosen wrote about the year of George Floyd’s murder. In his 2020 report he states, “Prosecutors, police officers, and, of course, this District Attorney need to ask ourselves if we are a part—intentionally or not—in these destructive and despicable racial injustices.”

The key phrase in his statement, and how it maps directly onto the RJA law is, “intentional or not.” The language of the RJA agrees with 2020 DA Rosen’s insight as it states, “Implicit bias, although often unintentional and unconscious, may inject racism and unfairness into proceedings similar to intentional bias.”

The DA’s current position reflects a remarkable perversion of the daily reality and interplay of power, rights and race in Santa Clara County. In the case of an elderly Black woman facing the possibility of being put in a cage, the DA’s office — the most powerful law enforcement office in the county — cries victim, that her challenging of racial injustice violates their rights as a prosecuting agency.

And the DA’s attack on the Racial Justice Act has much larger and dangerous implications.

It means that despite the progressive branding of the district attorney’s office delivered through public proclamations and media messaging after the George Floyd protests, they have decided four years later to use their institutional resources and position to maintain, protect and advance the exhibition of racial injustice they once claimed to abhor.

Raj Jayadev is a community organizer and criminal justice advocate. He is the co-founder of the Silicon Valley De-bug, a grassroots organization that supports people impacted by the criminal justice system