California Legislature Confronts Racial Discrimination in New Criminal Justice Reform Package

Despite time constraints imposed on the 2020 legislative session by the COVID-19 pandemic, the California legislature passed three major criminal justice reform bills this year which address racial discrimination in jury selection, the criteria for evaluating intellectual disability in death penalty cases, and racial bias in criminal prosecutions. On September 30, 2020, California Governor Gavin Newsom signed each of the following landmark pieces of legislation into law.

Assembly Bill 3070 -– Juries: peremptory challenges

AB 3070 increases transparency in jury selection by requiring attorneys exercising peremptory strikes to show clear and convincing evidence that their action is not related to the potential juror’s group identity. AB 3070 will take effect in criminal trials beginning on January 1, 2022, and in civil trials beginning on January 1, 2026.

This legislation formalizes and expands upon federal precedent prohibiting the exclusion of jurors from jury service on the basis of race, sex, or membership in another protected class. In the 1986 landmark case Batson v. Kentucky, the U.S. Supreme Court ruled that it is unconstitutional for the government to use peremptory challenges to exclude jurors on the basis of race. However, evidence that jurors of color are still being disproportionately excluded from jury pools has prompted many lawyers, scholars, and policymakers to question if the standards and procedures set by Batson are capable of effectively eliminating racial discrimination in jury selection.

In California, an attorney must follow three steps to challenge a jury strike under Batson: (1) she must argue that the strike in question is invalid because it is being made against a juror in a suspect class with discriminatory intent; (2) the State must then offer a neutral justification for challenging the juror; and (3) the trial court must assess the State’s rationale and decide whether the defendant has proven purposeful discrimination. AB 3070 addresses a question commonly raised regarding step two: what should qualify as an acceptably “neutral” justification for striking the juror? 

A June 2020 Berkeley Law report found that California’s appellate courts have failed to meaningfully address the pervasive exclusion of Black and Latinx jurors. Between 2006 and 2018, the California courts of appeal considered 683 cases in which trial courts denied defense attorneys’ Batson motions challenging the removal of Black and Latinx jurors. Even if prosecutors’ “race-neutral” reasons for striking jurors largely correlated with racial and/or ethnic stereotypes, courts were unlikely to find a constitutional violation. The data uncovered by the report show that while prosecutors used their strikes to remove Black jurors in nearly 75% of cases, and Latinx jurors in roughly 28% of cases, the appellate courts found constitutional error in only 2.6% of those decisions.

To address the question of what constitutes a sufficiently neutral ground to exclude a juror from service, AB 3070 specifically identifies the following reasons for exclusion as presumptively invalid, due in large part to the frequency with which they’ve been offered in support of striking jurors of color.  

• Expressing a distrust of or having a negative experience with law enforcement or the criminal legal system.
• Expressing a belief that law enforcement officers engage in racial profiling or that criminal laws have been enforced in a discriminatory manner.
• Having a close relationship with people who have been stopped, arrested, or convicted of a crime.
• A prospective juror’s neighborhood.
• Having a child outside of marriage.
• Receiving state benefits.
• Not being a native English speaker.
• The ability to speak another language.
• Dress, attire, or personal appearance.

Another issue AB 3070 seeks to remedy is Batson’s failure to address how unconscious discrimination and implicit bias may impact the use of peremptory strikes. In his concurring opinion in Batson, Justice Thurgood Marshall raised these concerns, writing, “A prosecutor’s own conscious or unconscious racism may lead him easily to the conclusion that a prospective black juror is ‘sullen,’ or ‘distant,’ a characterization that would not have come to his mind if a white juror had acted identically. A judge’s own conscious or unconscious racism may lead him to accept such an explanation as well supported.” Justice Marshall’s words have proven prophetic: since Batson was decided, a growing body of social science research has focused on the role of implicit bias in the criminal legal system.

To address this concern, AB 3070 replaces the “intentionality” requirement in California’s interpretation of Batson with an objective standard designed to root out conscious and unconscious bias. Borrowing language from Washington’s General Rule 37, AB 3070 instructs judges to sustain objections against any strike “if the court determines there is a substantial likelihood that an objectively reasonable person would view race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, as a factor.”

The California Assembly agreed to the bill’s final amendments in a 49-17 vote at 11:55 pm, five minutes before the end of the 2020 legislative session.

Assembly Bill 2512 – Death penalty: person with an intellectual disability

AB 2512 aims to modernize California’s death penalty intellectual disability statute by seeking to ensure that no person who meets the current scientific standard for intellectual disability will be sentenced to death in California. Backed by broad support, this bill was one vote away from passing both legislative chambers unanimously. AB 2512 applies to all death penalty cases in which a defendant claims to be ineligible for the death penalty because of an intellectual disability. Governor Newsom signed AB 2512 into law eighteen months after he signed a sweeping order placing a moratorium on California’s death penalty.

In 2002, the U.S. Supreme Court ruled in Atkins v. Virginia that it is unconstitutional to execute a person with an intellectual disability. That decision instructed courts to assess whether a capital defendant has sub-average intellectual functioning (typically measured by an IQ score below 70) and related deficits in adaptive skills that manifested before the age of eighteen. In 2003, the California Legislature added Penal Code § 1376 to implement this decision. Since its implementation, however, this code has been left substantively untouched in spite of the evolution of the science surrounding IQ and intellectual disability assessments. AB 2512 amends California’s current death penalty intellectual disability statute in two major ways.

First, AB 2512 addresses a concerning trend in the evaluation of intellectual disability in the wake of Atkins: the propensity of some courts to accept an “ethnic adjustment” to IQ scores that would otherwise meet the threshold for subaverage intellectual functioning. For example, prosecutors in some cases have argued that even if a defendant has an IQ score of 68, because IQ testing is biased against minorities and people of color, the defendant’s “actual” IQ should be considered to be higher—thereby excluding the defendant from a finding of intellectual disability and rendering him eligible for execution. This practice can result in a person of color being eligible for execution, even while a White person with an identical IQ score would not be. When determining if someone is death-eligible, AB 2512 explicitly prohibits prosecutors from arguing for adjusting a defendant’s IQ score based on their race, ethnicity, national origin, or socio-economic status.

Members of the California District Attorneys Association opposed this change on the grounds that it addresses an imaginary problem. However, there have been several instances in California in the past decade when racial adjustments to IQ scores were either used or advocated for. During the 2014 case In re Champion, the California Supreme Court listened to testimony from a prosecution expert who claimed, “it is preferable to use ethnically corrected norms when scoring [psychological] tests” because “Blacks ordinarily perform more poorly than Whites on those tests.”

Second, AB 2512 eliminates the current age-of-onset threshold, which requires an intellectual disability to be present in a person before age eighteen in order for it to be legally cognizable. The Diagnostic and Statistical Manual of Mental Disorders (DSM-5) states that intellectual disabilities can manifest anytime during the developmental period, which is now largely agreed upon by the scientific community to stretch beyond the age of legal adulthood. AB 2512 updates the statute’s definition of an intellectual disability to include cases in which deficits “manifested before the end of the developmental period,” thereby better aligning the law with current clinical standards.

Assembly Bill 2542 – Criminal procedure: discrimination (“California’s Racial Justice Act”)

Of the criminal justice bills passed in the California Assembly this legislative session, AB 2542, better known as the California Racial Justice Act (CRJA), is arguably the most far-reaching. The CRJA prohibits prosecutors from seeking, obtaining, or imposing a conviction or sentence on the basis of race by expanding opportunities for defendants to challenge racial bias in their case. Specifically, the CRJA would make it possible for a person charged with or convicted of a crime to challenge their conviction or sentence by demonstrating that one of the following examples of discrimination played a role in their prosecution:

1. An attorney, judge, law enforcement officer, expert witness, or juror involved in the case exhibited racial bias or animus towards the defendant.
2. During the trial, whether or not purposeful or directed at a defendant, there was use of racially discriminatory language.
3. There is statistical evidence that people of one race are disproportionately charged or convicted of a specific crime or enhancement.
4. There is statistical evidence that people of one race receive longer or more severe sentences, including the death penalty or life without parole.

The third and fourth examples are particularly notable because they establish the CRJA as a direct countermeasure to a widely criticized precedent established in the 1987 case McCleskey v. Kemp. In a 5-4 decision, the U.S. Supreme Court ruled in McCleskey that statistical data showing evidence of systemic racial discrimination did not constitute sufficient evidence to overturn a death sentence. Instead, the Court held that to successfully challenge a conviction or sentence based on racial discrimination, a defendant would have to show specific evidence of racist motivation or intent in the prosecution of his individual case.

While signing the CRJA, California Governor Newsom’s Office issued a press release describing the McCleskey standard as “almost impossible to meet without direct proof that the racially discriminatory behavior was conscious, deliberate and targeted.” The sponsor of AB 2542, former public defender Ash Kalra, suggested that the CRJA is necessary because McCleskey insulated racial disparities from judicial review. Of note, Justice Powell—who authored the majority opinion in McCleskey—said four years after retiring from the Supreme Court that, if given the chance, McCleskey was one case in which he would change his vote.  

When speaking to his motivations for sponsoring the CRJA, Assemblymember Kalra said, “It’s impossible to ignore the racial disparities that exist when you look at those that are prosecuted and those that are sent away to prison.” In 2016, The Sentencing Project reported that California has one of the highest sentencing disparities in the country, incarcerating Black men at over eight times the rate of White men.

Opposition to the CRJA focused on fears that its broad application would overwhelm the court system. However, the bill passed on the last day of the legislative session with a final Assembly vote of 49-16. The CRJA will apply only prospectively to all criminal cases in which the trial court judgment is issued on or after January 1, 2021.

Two other states, Kentucky and North Carolina, have both enacted Racial Justice Acts specific to the death penalty. Although the North Carolina Act was repealed in 2013, it resulted in two men being removed from that state’s death row earlier this year. Read more about North Carolina’s Racial Justice Act in our summer newsletter here.