San Jose legislator’s Racial Justice Act passes Senate committee
In this file photo, Assemblymember Ash Kalra is pictured at this year's Juneteenth ceremony at San Jose City Hall. Photo by Luke Johnson.

One South Bay legislator’s efforts to assert civil rights within the California court system is moving forward in Sacramento.

Assemblymember Ash Kalra (D-San Jose) authored Assembly Bill 2542, known as the California Racial Justice Act, to address discrimination in sentencing by allowing the accused to use evidence of systemic racism in the consideration of charges.

The bill was approved Aug. 7 by the State Senate’s Public Safety committee and will now move forward to the Senate Appropriations Committee within the next few days — a normally months-long process that will instead be condensed down within August due to COVID-19 schedules.

One example of how AB 2542 might pursue more equitable sentencing would be by highlighting a District Attorney’s office’s history of charging defendants of color more severely than white defendants, or presenting arrest records that disproportionally impact Black, Latino and other minority populations.

The bill doesn’t require discrimination to be purposeful or have prejudicial impact on a defendant’s case.

That’s why the California District Attorneys Association opposes the bill, arguing it would grind the court system to a halt and allow any conviction to be reopened, according to senate documents.

According to the Sentencing Project, African Americans are incarcerated in state prisons across the country at more than five times the rate of whites. That disparity is even greater in California, where Black men are more than eight times more likely to be incarcerated than white men.

Having spent 11 years as a deputy public defender in Santa Clara County, Kalra said current law requires defendants to prove intentional racism, which Kalra said not only demands a high burden of proof, but also misses the bigger picture.

“It’s the unintentional systemic biases that are even more pervasive and damaging in many ways,” Kalra told San José Spotlight. “It’s impossible to ignore the racial disparities that exists when you look at those that are prosecuted and those that are sent away to prison. This system (allows) the government to accuse any individual and put their liberty at stake. That’s a lot of power, and it’s up to the government to wield that power responsibly.”

The bill was first read in February — three months before the police killing of George Floyd sparked a national outcry for criminal justice reform – but Kalra said the recent Black Lives Matter movement and disparities highlighted by the COVID-19 pandemic make 2020 a unique time to focus on how racism is entwined into society.

“The torture and murder of George Floyd didn’t create racial inequity in our country — it exposed it in a way that is obviously captured by the spirit of our nation,” Kalra said. “Racial disparities in the criminal justice system have been around since the onset, and they haven’t gotten much better. The need for us to be intentional about rooting out racism in our criminal justice system has been apparent for decades.”

Kalra denies the bill would cause major slowdowns in the legal system but added that any extra time needed to deliver more due process costs less than the human toll of unjust protections, a position held by Gov. Gavin Newsom when he imposed a moratorium on executions in March 2019.

“It’s not about a few bad apples, it’s about the root of this tree being so embedded in our culture and in our society that we have got to root it out,” Kalra said. “That’s painful, in terms of it being a massive undertaking, but the current system we have has disparities and those disparities are by design, so we’ve got to redesign our system.”

The Ella Baker Center for Human Rights, a co-sponsor of the bill, agrees, writing that this change would counter McCleskey v. Kemp, a debated 1987 U.S. Supreme Court decision ruling that “is almost impossible to meet without direct proof that the racially discriminatory behavior was conscious, deliberate and targeted.”

Amber-Rose Howard, Californians United for a Responsible Budget executive director, said this is the perfect time to tackle this facet of injustice.

“At a time when diverse communities all over the state and the nation are calling for the defense and protection of Black lives from state violence, we cannot continue to ignore the racism that lives in criminal courts,” Howard said. “The California Racial Justice Act aims to directly defend Black lives by allowing California to confront systemic racism in the criminal legal system, which has devastated the Black community for far too long.”

Contact Katie Lauer at [email protected] or follow @_katielauer on Twitter.

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