As a public defender, Ash Kalra said he experienced firsthand the impact racism has had on communities of color in the court system, including jury selection, the use of racially discriminatory language and disparities in charging and sentencing.
The San Jose assemblymember said his answer was to author Assembly Bill 2542, the California Racial Justice Act.
“Nowhere else is racism so insidious and damaging as in our criminal courts,” Kalra said. “This year has shown us that we cannot wait another minute to confront racism and systemic bias in our systems of justice.”
On Sept. 22, Kalra and supporters of the bill hosted a virtual panel to discuss the bill’s importance.
The panel included Alameda County Chief Public Defender Brendon Woods, Executive Director Amber-Rose Howard of Californians United for a Responsible Budget, Natasha Minsker of Smart Justice and San Francisco District Attorney Chesa Boudin.
AB 2542 prohibits the state from seeking or obtaining a conviction or imposing a sentence on the basis of race, ethnicity or national origin.
The bill was created to counter the 1987 U.S. Supreme Court ruling of McCleskey v. Kemp, which rejected statistical evidence as proof of discrimination. The judge said defendants had to prove intentional discrimination if they claimed bias affected their legal process.
AB 2542 allows defendants to file a motion in trial court to overturn a conviction by proving a law enforcement officer, attorney, juror, expert witness or judge exhibited bias or used racially discriminatory language about the defendant’s race, ethnicity or national origin.
Defendants are also permitted to claim racial discrimination in the jury selection and argue they were charged, convicted or received a more severe sentence than similarly situated defendants of other races, ethnicity or national origins in similar situations.
In its 2019 report “Disposition of Criminal Cases According to the Race and Ethnicity of the Defendant,” the Judicial Council said after controlling for legal factors such as prior convictions, race, ethnicity, gender and age were significantly associated with rates of conviction, felony versus misdemeanor convictions and imposition of a prison versus an intermediate sentence.
The report said Black men convicted of a felony were 42% more likely to be sentenced to prison than white men.
“…it is clear that Black and Latino communities have disproportionately bore the brunt of our criminal justice system for far too long,” Kalra said. “This is not a fluke or statistical anomaly; this is by design.”
Although the Legislature approved the bill Aug. 31, it was an uphill battle. With less than two hours before the end of the legislative session, the bill passed with a vote of 49-16. It now awaits the governor’s approval.
The California District Attorneys Association (CDAA) and California State Sheriffs’ Association (CSSA) opposed AB 2542.
CDAA, concerned the bill’s broad application could negatively impact the court system, asked the governor to veto the bill.
“We’re not opposed to racial justice,” said Larry Morse, legislative director for the CDAA. “This is an extraordinarily broad change … allowing challenges to convictions based on things inconsequential to whether the person was guilty.”
Morse said following the bill, if a person shot five people and 20 people witnessed the crime, the case might have to be retried if a police officer involved in collecting evidence made a racially insensitive remark.
He also objected to the costs associated with complying and the collection of data the District Attorney’s office would have to collect.
“The amount of discovery you’d have to obtain … is breathtaking,” Morse said. “Just because you call something a Racial Justice Act doesn’t mean it doesn’t have multiple flaws in its actual implementation. This is a very complex, very consequential piece of legislation with untold costs.”
The bill’s thresholds and “low standard” of evidence concerned CSSA as “appropriate convictions and sentences” could be thrown out. CSSA also said AB 2542 could greatly increase court caseloads.
“There is a cost for retrials,” said Woods, “but you can’t put a cost on racism. The cost paid forward by the Black community for 400 years. You can’t put a price tag on that … on disparity … due to the fact that our system is so inherently racist.”
For Karla, AB 2542 is a necessary step.
“We must take a profound step towards equity in our courts,” Kalra said, “and be the righteous engineers of a new design for a system that is currently broken.”
Contact Lorraine Gabbert at [email protected].