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self-study / Discrimination

Aug. 2, 2022

Court of Appeals in Young v. Solano County opens the door to racial bias complaints

Brenda Star Adams

Directing Attorney , National Center for Youth Law

Racial bias impacts decisions to arrest, charge, prosecute, convict, and sentence individuals and results in the disproportionate incarceration of people of color across California. The Racial Justice Act was intended to identify that bias, stop it in its tracks, and remedy its effects. Recently, the California Court of Appeals interpreted the Racial Justice Act for the first time, opening the door to defendants to assert claims of racial bias in criminal cases.

Historic Passage of the California Racial Justice Act of 2020

On Sept. 30, 2020, Gov. Gavin Newsom signed into law AB 2542, the "California Racial Justice Act of 2020" (RJA), a first-of-its-kind bill that expressly prohibits racial bias in policing, prosecution, and sentencing, and grants victims of such bias the right to raise RJA violations in their criminal proceedings. See generally Cal. Pen. Code § 745; Press Release, Office of Assemblymember Ash Kalra (Sept. 30, 2020).

Specifically, the Racial Justice Act - which was sponsored by a host of criminal justice reform organizations - prohibits the State of California from seeking a criminal conviction or sentence on the basis of race, ethnicity, or national origin. A violation is established by proving by a preponderance of the evidence that (1) a judge, attorney, law enforcement officer, expert witness, or juror exhibited bias based on race, ethnicity, or national origin; (2) during the trial, one of the foregoing used racially discriminatory language; (3) Race, ethnicity or national origin was a factor in the exercise of peremptory challenges; (4) the defendant was charged or convicted of a more serious offense than defendants of other races for comparable offenses; and (5) either a longer or more severe sentence was imposed than others similarly situated. Pen. Code § 745(a)(1)-(5).

The law also allows a defendant, upon a showing of good cause, to file a motion requesting discovery of evidence from the prosecution related to a potential violation of the Act. Pen. Code § 745(d). If a violation is found after judgment, the court must vacate and invalidate the conviction and accompanying sentence. Pen. Code § 745(e)(2)(A)-(B). The law applies to youth in juvenile court as well as adults. Pen. Code § 745(f).

The bill was passed a few short months after a video depicting the murder of George Floyd by then-police officer Derek Chauvin shocked the nation. Though Floyd's murder is only one in a long history of police-involved killings of Black people, his death prompted a nation-wide reckoning about racial bias in our criminal justice system. It was against this backdrop that California enacted the RJA to "eliminate racial bias from California's criminal justice system ... [,] to remedy the harm to the defendant's case and to the integrity of the judicial system[, and] to ensure that race plays no role at all in seeking or obtaining convictions or in sentencing."

As an example of why current law is inadequate, the Legislature pointed to convictions upheld in cases where prosecutors compared defendants (people of color) to caged animals. Assem. Bill 2542 (2019-2020 Reg. Sess.) § 2, subd. (i). Such demonstrated bias is not limited to California. A Philadelphia study found that coverage from the Philadelphia Inquirer of Black defendants included, on average, four times the number of dehumanizing references per article than those covering white capital defendants. Further, the study found a strong correlation between the number of times an animalistic reference was made and the likelihood that the defendant would receive the most severe punishment available. Philip Atiba Goff et al., Not Yet Human: Implicit Knowledge, Historical Dehumanization, and Contemporary Consequences, 94 J. Personality & Soc. Psychol. 292, 304-05 (2008).

Prevalence of Racial Bias in California's Criminal Justice System

Racial bias and discrimination in California's criminal justice system is wide-spread and well-documented. In California, Black men are incarcerated at more than eight times the rate of white men, (Nellis, A., "The Color of Justice: Racial and Ethnic Disparity in State Prisons," The Sentencing Project (Oct. 13, 2021) (stating that California is one of the seven states that maintains a Black/White disparity larger than 9:1.), receive harsher punishments than their white counterparts for the same crimes, (American Civil Liberties Union, Racial Disparities in Sentencing (Oct. 27, 2014) (sentences imposed on Black males in the federal system are nearly 20% longer than those imposed on white males convicted of similar crimes.), and are nearly three times more likely than white individuals to be killed by a police officer. (Stacker, A History of Police Violence in America (April 29, 2022)).

Youth experience similar rates of bias. Youth of color of all ages and genders are more likely than white youth to be arrested, referred to probation, have a petition for delinquency filed against them, be made a ward of the court, and be placed in juvenile detention. See California Department of Justice Report (2020), at 72; The Burns Institute, State of Disparities: California (2019). Black youth specifically are 31 times more likely than their white peers to be institutionalized in a secure facility where they are subjected to isolation and dangerous conditions, and their educational access and mental health supports are interrupted. The Office of Youth Justice, California Youth Face Heightened Racial and Ethnic Disparities in Division of Juvenile Justice (Aug. 2020). In 2019, 94% of youth committed to California's state youth correctional system, the Division of Juvenile Justice (DJJ), were Black and brown. Id.

Racial discrimination is also evident in traffic stops. A 2022 Annual Report based on self-reporting from law enforcement agencies found discrimination at nearly every decision point during such stops. A higher percentage of Black individuals were stopped for reasonable suspicion (as opposed to a traffic violation) than any other racial identity group. (Racial Identity Profiling Advisory Board (RIPA), Annual Report (2022) at 9.) Individuals perceived as Black were searched, detained, handcuffed and removed from vehicles more than individuals perceived as white, even though officers stopped more than double the number of white people. Id.

Black and Hispanic individuals were more likely to have force used against them compared to White individuals. Id. at 10. Despite stopping and searching Black individuals far more than white individuals, the rates of discovering contraband were far lower for all racial groups compared to whites, with the largest discovery difference in Black individuals ( -11.4% percentage points). Id. at 13. Thus, despite the perception by law enforcement that Black motorists are more likely to be engaged in criminal activity, whites were more likely to have contraband.

It is worth noting that discrimination in traffic stops goes beyond race. A higher rate of transgender individuals were searched than cisgender people. Additionally, "officers searched individuals perceived to have a mental health disability 4.8 times more often than individuals perceived to have other types of disabilities and 2.7 times more often for other types of disability than individuals perceived to have no disability, but discovered contraband or evidence at a lower rate during stops with searches of individuals with disabilities. Officers used force against individuals perceived to have mental health disabilities at 5.2 times the rate at which they used force against individuals they perceived to have no disabilities." Id. at 11.

Court in Young v. Superior Court of Solano County Interprets RJA for First Time

Clemon Young, Jr. complained that it was precisely this practice of racial profiling in traffic stops that led to his arrest for possession of Ecstasy with intent to sell. Young v. Superior Court of Solano County, 79 Cal. App. 5th 138, 143 (2022) ("Young"). He used statewide data showing that Black individuals are more likely to be subjected to such traffic stops and searches to support his claim that the State had violated the RJA. Id; see also Cal. Pen. Code § 745(a)(3) ("Pen. Code"). Penal Code section 745(a)(3) establishes a violation of the RJA if defendant can prove that they were charged or convicted of a more serious offense than defendants of other races in comparable cases and that the prosecution more frequently sought or obtained convictions for more serious offenses against people of the defendant's race.

In support of his claim, Young made a motion pursuant to the RJA seeking the following discovery: "names and case numbers of others who were charged with or could have been charged with possession of Ecstasy for sale; the same information for a broad range of related drug offenses; the police reports relating to the suspects involved and their criminal histories; and the dispositions in all of these cases." Young, at 143-44.

In addition to statewide data, Young pointed to the circumstances of the traffic stop as textbook racial profiling - a pretextual traffic stop for an infraction (but no citation for the alleged infraction), the use of excessive, unprovoked force (he was forced from his vehicle, beaten, and thrown to the ground), and a search of his entire car. Id. at 146, 161. The trial court denied Young's motion on the basis that he had failed to establish good cause for the discovery because he had cited "nothing more than his race" as evidence of the violation. Id. at 144. In denying the motion, the trial court specifically invited Young to appeal the decision, noting there was "so little guidance" and "maybe this case will lead to us getting some." Id. at 146.

In reviewing Young's appeal, (Young filed a petition for writ of prohibition which received significant amicus support, Id. at 147), the Appellate Court was called upon to decide an issue of first impression: What showing must a defendant make in order to obtain discovery under the RJA? Id. at 153. It began its inquiry by reviewing the bill's legislative intent, which states existing law is insufficient to root out bias in our criminal justice system because it requires proof of intentional discrimination, and expressly disclaims the outcome in McCleskey v. Kemp. Id. at 149 (citing Assem. Bill 2542 (2019-2020 Reg. Sess.) § 2, subd. (d)-(f)). In McCleskey v. Kemp, Warren McCleskey challenged his conviction and death penalty sentence by citing statistical evidence showing defendants in Georgia who killed white victims were 4.3 times more likely to receive the death penalty than defendants charged with killing Black victims. Id. at 151 (citing McCleskey v. Kemp, 481 U.S. 279, 278 (1987) ("McCleskey"). A 5-4 majority found that specific evidence of intentional discrimination by the parties involved was necessary for a constitutional violation. Id. at 152 (citing McCleskey, supra, at 319).

Of particular note was the Legislature's intention to "ensure" that defendants claiming a violation of the RJA have "access to all relevant evidence, including statistical evidence, regarding potential discrimination in seeking or obtaining convictions or imposing sentences." Id. at 150 (citing Assem. Bill 2542, § 2, subd. (j)).

The Young Court then reviewed decisions interpreting the rights of defendants to seek discovery in support of claims of racial discrimination, and rejected the higher standard applied in United States v. Armstrong, 517 U.S. 456 (1996) ("Armstrong"), which states that such discovery requests must "be subjected to rigorous evidentiary scrutiny." Young, supra, at 153-156 (citing Armstrong).

Instead, the Court took its guidance from Pitchess v. Superior Court, 11 Cal.3d 531 (1974), which allows discovery on a showing of "good cause" and employs a "relatively relaxed standard." Young, supra, at 158. To establish a "plausible factual foundation" for discovery related to officer misconduct under Pitchess, "a defendant need only demonstrate that the ... misconduct could or might have occurred," not that it was probable or credible. Id. (quoting Warrick v. Superior Court, 35 Cal.4th 1011, 1025, 1016 (2005)). The Court also considered two other appellate cases which, taken together, establish a "plausible justification" standard for selective prosecution claims under California law. Id.; Griffin v. Municipal Court, 20 Cal.3d 300 (1977); Murgia v. Municipal Court, 15 Cal.3d 286 (1975).

The Young court therefore concluded that "in order to establish good cause for discovery under the RJA, a defendant is required only to advance a plausible factual foundation, based on specific facts, that a violation of the Act 'could or might have occurred' in his case." Young, supra, at 159. The Court noted, however, that a motion under the RJA is "even more relaxed" because the RJA lacks the affidavit and materiality requirements present in Pitchess. Id. at 160. Under the RJA, discovery sought must merely be "relevant to a potential violation" of Penal Code section 745(a). Id. (quoting Pen. Code § 745(d)). The Court reasoned that, because a violation could be shown in a variety of ways and by both direct and circumstantial evidence, the "threshold showing for good cause must be commensurately broad and flexible." Id.

The Court ultimately reversed, vacated the order denying Young's discovery motion, and remanded the case to the trial court for reconsideration in light of its ruling with the following caveat: "There are few claims as serious as the charge put forth by the defendant[ ] here - that the government has selected [him] for prosecution because of [his] race. Such claims deserve the most careful examination by the courts so that the prosecutorial power does not become a license to discriminate based on race. Discovery is the crucial means by which defendants may provide a trial judge with the information needed in order to determine whether a claim of selective prosecution is meritorious." Id. at 169-170 (quoting Armstrong, supra, at 1508).

How the RJA and Young Decision Impact Racial Bias in California's Criminal Justice System

The RJA is helping expose the pervasive nature of racial bias in our criminal justice system. Discovery from RJA motions has revealed, for example, the disproportionate use of gang enhancements in San Mateo County almost exclusively against people of color. See California Department of Corrections and Rehabilitation Division of Correctional Policy Research and Internal Oversight Office of Research (Nov. 10, 2021) (showing all discharged or non-discharged felons with an offense enhancement of Penal Code 186.22(b) or conviction under Penal Code 186.22(a) from San Mateo County from October 1, 1988 to November 10, 2021).

In Marin County, RJA violations were raised because Latine youth are generally disproportionately charged at all levels, and prosecutors made racially biased (and unfounded) insinuations that the Latino youth in the case was involved in a gang. People of the State of California v. J.S., No. JV27024 (Marin County Superior Court), A162419 (California Court of Appeal, First Appellate District, Division 5). The Trial Court denied the motion and the case is presently on appeal with amicus briefs filed by the Office of the State Public Defender, the Youth Law Center, and the Pacific Juvenile Defender Center.

Discovery from an RJA motion brought in Alameda County showed that Black and Latine people receive more severe charging and sentencing when arrested for certain crimes. In Orange County, a judge found a violation of the RJA based on the prosecutor's comments about a (Black) defendant's motivation in dating white women. See "OC district attorney violated Racial Justice Act in double murder case, judge finds," L.A. Times (June 3, 2022).

Even where the RJA motion does not result in a found violation, public defenders share anecdotally that raising violations of the Act is resulting in better plea offers from prosecutors. The motions are also essential to educating the Court and forcing it to confront its own bias. In an RJA motion brought in Santa Clara County, the defendant argued the victim's prior use of the n-word demonstrated bias that might cause him to embellish his account. In denying his motion, the judge disturbingly reasoned that because the victim had at least two Black friends on Facebook, his use of the n-word precluded him from being racially biased. She later, however, removed a prior "strike" against the defendant and ordered him to a suspended 5-year prison term so long as he completes a rehabilitation program. His attorney felt this "leniency" was clearly the result of the RJA motion. See "Early attempt to invoke racial justice act denied by South Bay judge," Mercury News (March 30, 2021).

The sweeping applicability of the RJA and the Young Court's broad interpretation of its discovery provisions open the door for defense counsel to leverage the Act to negotiate reduced or dismissed charges or sentences, request a mistrial, discharge a jury panel, dismiss enhancements or special circumstances or reduce one or more charges, vacate convictions and sentences, and order new proceedings. The Office of the State Public Defender has developed resources for practitioners (including a toolkit with sample motions), provides training on how to assert RJA claims, and offers consultations on cases where racial bias is suspected. Defense attorneys should visit their public website and sign up for listserv AB2542 to post questions and request resources or consultations.

Most importantly, the Act and Young's broad interpretation force courts to squarely address racial bias in the system, and empowers system-involved families to share their life experiences and expose the bias that has impacted their lives for generations.

(Advocates who helped pass the RJA are now working to pass a related bill that will make the RJA retroactive. AB 256, the "California Racial Justice Act for All," passed in the Assembly and is currently in the Senate. If the bill passes, Gov. Newsom will have until Sept. 30, 2022 to sign or veto the bill. You can support the bill by contacting your state senators to urge their support through this online toolkit: http://bit.ly/RJA4All.)

(Edited by Derick Morgan, Senior Policy Associate, Ella Baker Center for Human Rights, Michael Harris, Senior Director, Justice and Equity, National Center for Youth Law, and Willis Jacobson, Media Relations Manager, National Center for Youth Law; informed by Zachary Kirk, Columnist, Silicon Valley De-Bug.)

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