Guide for 'race blind' charging decisions suggests artificial intelligence

Attorney General Rob Bonta has issued guidelines for prosecutors on how to comply with a new state law requiring “race blind” charging procedures.

Opponents of AB 2778 said it would be expensive to implement and questioned whether it addressed a real problem. But the bill was sponsored by a past president of the California District Attorneys Association and passed last year on a combined floor vote of 117-0.

The law, which goes into effect in 2025, requires prosecuting agencies to redact information related to “the race of the suspect, victim, or witness” from charging documents. According to Bonta’s guidelines, bias in the severity of charges is usually not based on conscious racial animus. Instead, “implicit bias is most likely to occur in situations where prosecutors are making a high volume of quick decisions” and “when handling these routine cases.”

“Unfortunately, we know the criminal justice system is not infallible and charging decisions are vulnerable to unconscious bias,” Bonta said in a news release. “This is a reality we cannot ignore and must work to correct. These guidelines will help prosecutors perform their duties in accordance with California law and most importantly, help promote a more fair and equitable charging process for all individuals.”

The guidance details a two-step process consisting of (1) a “’race-blind initial charging evaluation’ based only on redacted reports, and then (2) the ‘ordinary charging evaluation’ based on unredacted reports and all available evidence.” The goal is to remove the consideration of race from the initial charging decisions, which often determine what possible sentences or plea deals a suspect may receive as the case against them proceeds.

An Assembly Appropriations Committee analysis found the law would cost more than $3 million annually to implement. Bonta’s guidance focused on trying to make it easier for agencies to follow the new rules. For instance, it lays out how to remove and replace racially identifying terms like “dark complexion” from entire documents in four commonly used software programs. The guidelines also detail how to use artificial intelligence tools to “improve the efficiency and accuracy of the redaction process.”

AB 2778 was sponsored by Yolo County District Attorney Jeff Reisig and based on a pilot program Reisig launched in his office in 2021. Reisig did not respond to an email seeking comment. But in a 2022 news release after the bill’s passage, he praised Bonta and Assemblyman Kevin McCarty, D-Sacramento, who wrote AB 2778. The release also said the Stanford Computational Policy Lab created software specifically for his office to “automatically redact information in police reports that identify an individual’s race.”

Reisig is a past president of the California District Attorneys Association. Reached on Thursday, Reisig’s former chief deputy, Jonathan Raven, said the association also supported the bill after provisions were added to mandate that the state would assist local offices with paying to implement the program.

“In order to get the buy-in from the California DA’s Association and all the elected DAs, we worked very hard on the language in the bill to require funding for all the DAs offices to be able to implement and build the race blind charging program,” said Raven, now assistant CEO at the association.

The San Diego County Deputy District Attorneys Association led opposition to the bill. The group did not respond to an email seeking comment. But in an opposition letter last year, the group argued the state should not be a “guinea pig” for an expensive pilot project. The letter also noted there were several exceptions to the law, including homicide, hate crimes and sexual assault, adding that these show the law will create “logistical problems” while having little impact on the alleged problem it aims to address.

The association also argued, “It’s not clear that there even exists a problem of unconscious bias influencing prosecutorial charging decisions in this state.” It cited a separate pilot project in San Francisco that found “no clear evidence for racial biases in prosecutorial charging decisions.”

The guidelines from Bonta’s office listed several other studies in its footnotes suggesting implicit bias plays a role in charging and policing decisions.