BERKELEY, Calif. (CN) — In the two years since California passed the Racial Justice Act, attorneys and public defenders say there has been slow progress toward criminal justice reform and pursuit of a less biased system.
University of California, Berkeley’s Criminal Law and Justice Center and the Berkeley Journal of Criminal Law hosted a symposium Friday on utilizing and following the new law through pretrial, trial and post-conviction processes. The act prohibits “bias based on race, ethnicity, or national origin in charges, convictions and sentences,” and describes what constitute violations by government actors or agencies.
Experts explained how the act has affected California's criminal justice system, how claims for violations of the act can be handled by public defenders and how resistance to its requirements during criminal proceedings is being experienced.
Karina Alvarez of Santa Clara County’s Public Defender’s Office said the 2022 law codifies what constitutes racial discrimination at different levels within the criminal justice system.
“Up until it passed, we in the courts have only addressed racism and bias in its most overt forms,” Alvarez said.
The law can be used to address less overt bias during criminal proceedings, she said. It does not, however, fully address pre-existing statutes which some have called discriminatory, such as penalty enhancements for gang-related activity.
Elizabeth Lashley-Haynes of the Los Angeles County Public Defender’s Office advised attorneys to be ready for pushback from judges when pursuing a claim that a government actor violated the law. She said she has seen reluctance to acknowledge judges aren't always as educated as they should be about racially biased policing and prosecution.
“This is very difficult for the courts to deal with,” she said. “Judges are so afraid of this — they try to do everything to avoid dealing with it.”
Sujung Kim of the San Francisco Public Defender’s Office said that there has also been pushback by district attorneys, such as in San Francisco where requests to release information on prior offenses has been denied because those are “not considered when seeking convictions.” She said public defenders can cite evidence of police and prosecutors focusing on neighborhoods with higher populations of low-income or non-white residents, while attaching information for judges on historic patterns of racial bias.
Alameda County Public Defender’s Office attorney Jane Brown said it is important throughout criminal proceedings to notice any conduct which could violate a client’s right to protection from discrimination.
“The greater the difference in empathy toward a complaining witness or victim, and empathy for your client, the more chances are for the prosecutor to draw upon those implicit biases,” she said. “All of these things relate back to the days of enslavement. We need to normalize talking about those things in open court. I’m not here to tell you it’s easy.”
Several attorneys are already litigating Racial Justice Act claims in state and appellate courts. Morgan Zamora of the Ella Baker Center for Human Rights said her team is scrambling to ensure that incarcerated people understand their rights under the act, especially if they use it to seek a habeas corpus petition.
Lisa Romo of the state Public Defender’s Office said all of these efforts are hampered by limited funds and information. Police departments must each year report data on incidents, from stops to arrests, to the state Department of Justice — but beyond that data it is difficult and expensive to obtain records for a Racial Justice Act claim.
The Paper Prisons Initiative said it is seeking the federal approval of its new tool to help attorneys analyze that crime data and help identify disparities. Santa Clara University professor of economics William Sundstrom said the tool can be used to identify disparities like higher rates of arrests among Black residents in Los Angeles County, compared to their portion of the county’s population.
The struggle lies in knowing how to use the data while understanding that it is limited, he said, since not all counties and police departments have had to report as much, or in as timely a manner.
David Ball, an associate professor at Santa Clara Law, said the act makes it easier to use the data available to demand the criminal justice system rethink old assumptions about who commits crimes more often, and why.
“Data is part of the equation, but it’s not the whole equation,” Ball said.
Romo said she thinks all of this proves forward progression, “to tell the story of racism and bias in criminal justice."
“This is going to take a long time. This is not short-term work,” she said.
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