California Acts of the 2020 Legislative Session
AB 2542, Chapter 317
An act to amend Sections 1473 and 1473.7 of, and to add Section 745 to, the Penal Code, relating to criminal procedure.
AB 2542, Kalra.
Criminal procedure: discrimination.
Existing law generally prescribes the procedure for the prosecution of persons arrested for committing a crime, including pleadings, bail, pretrial proceedings, trial, judgment, sentencing, and appeals. Existing law allows a person who is unlawfully imprisoned or restrained of their liberty to prosecute a writ of habeas corpus to inquire into the cause of their imprisonment or restraint. Existing law allows a writ of habeas corpus to be prosecuted for, among other things, relief based on the use of false evidence that is substantially material or probative to the issue of guilt or punishment that was introduced at trial.
This bill would prohibit the state from seeking a criminal conviction or sentence on the basis of race, ethnicity, or national origin, as specified. The bill would allow a writ of habeas corpus to be prosecuted on the basis of that prohibition, and would require the defendant to appear at the evidentiary hearing by video unless their presence in court is needed. The bill would permit a defendant to file a motion requesting disclosure of all evidence relevant to a potential violation of that prohibition that is in the possession or control of the prosecutor and would require a court, upon a showing of good cause, to order those records to be released. The bill would authorize a court that finds a violation of that prohibition to impose a remedy specified in the bill. The bill would apply its provisions to adjudications and dispositions in the juvenile delinquency system. The bill would apply its provisions only prospectively to cases in which judgment has not been entered prior to January 1, 2021.
Existing law creates an explicit right for a person no longer imprisoned or restrained to file a motion to vacate a conviction or sentence based on a prejudicial error damaging to the moving party's ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere, or based on newly discovered evidence of actual innocence, as specified.
This bill would additionally allow for a person no longer imprisoned or restrained to file a motion to vacate a conviction or sentence based on a conviction or sentence that was sought, obtained, or imposed on the basis of race, ethnicity, or national origin in violation of the bill's provisions.
This bill would state that its provisions are severable.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1.
This act shall be known and may be cited as the California Racial Justice Act of 2020.
SEC. 2.
The Legislature finds and declares all of the following:
(a) Discrimination in our criminal justice system based on race, ethnicity, or national origin (hereafter "race" or "racial bias") has a deleterious effect not only on individual criminal defendants but on our system of justice as a whole. The United States Supreme Court has said:
"Discrimination on the basis of race, odious in all respects, is especially pernicious in the administration of justice." (Rose v.
Mitchell, 443 U.S. 545, 556 (1979) (quoting Ballard v. United States, 329 U.S. 187, 195 (1946))). The United States Supreme Court has also recognized "the impact of & evidence [of racial bias] cannot be measured simply by how much air time it received at trial or how many pages it occupies in the record. Some toxins can be deadly in small doses." (Buck v. Davis, 137 S. Ct. 759, 777 (2017)). Discrimination undermines public confidence in the fairness of the state's system of justice and deprives Californians of equal justice under law.
(b) A United States Supreme Court Justice has observed, "[t]he way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination." (Schuette v. Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary, 572 U.S. 291, 380-81 (2014) (Sotomayor, J., dissenting)). We cannot simply accept the stark reality that race pervades our system of justice. Rather, we must acknowledge and seek to remedy that reality and create a fair system of justice that upholds our democratic ideals.
(c) Even though racial bias is widely acknowledged as intolerable in our criminal justice system, it nevertheless persists because courts generally only address racial bias in its most extreme and blatant forms. More and more judges in California and across the country are recognizing that current law, as interpreted by the high courts, is insufficient to address discrimination in our justice system.
(State v. Saintcalle, 178 Wash. 2d 34, 35 (2013); Ellis v.
Harrison, 891 F.3rd 1160, 1166-67 (9th Cir. 2018) (Nguyen, J., concurring), reh'g en banc granted Jan. 30, 2019; Turner v. Murray, 476 U.S. 28, 35 (1986); People v. Bryant, 40 Cal.App.5th 525 (2019) (Humes, J., concurring)). Even when racism clearly infects a criminal proceeding, under current legal precedent, proof of purposeful discrimination is often required, but nearly impossible to establish. For example, one justice on the California Court of Appeals recently observed the legal standards for preventing racial bias in jury selection are ineffective, observing that "requiring a showing of purposeful discrimination sets a high standard that is difficult to prove in any context." (Bryant, 40 Cal.App.5th 525 (Humes, J., concurring)).
(d) Current legal precedent often results in courts sanctioning racism in criminal trials.
Existing precedent countenances racially biased testimony, including expert testimony, and arguments in criminal trials. A court upheld a conviction based in part on an expert's racist testimony that people of Indian descent are predisposed to commit bribery. (United States v. Shah, 768 Fed. Appx. 637, 640 (9th Cir.
2019)). Existing precedent has provided no recourse for a defendant whose own attorney harbors racial animus towards the defendant's racial group, or toward the defendant, even where the attorney routinely used racist language and "harbor[ed] deep and utter contempt" for the defendant's racial group (Mayfield v. Woodford, 270 F.3d 915, 924-25 (9th Cir. 2001) (en banc); id. at 939-40 (Graber, J., dissenting)). Existing precedent holds that appellate courts must defer to the rulings of judges who make racially biased comments during jury selection. (People v. Williams, 56 Cal. 4th 630, 652 (2013); see also id. at 700 (Liu, J., concurring)).
(e) Existing precedent tolerates the use of racially incendiary or racially coded language, images, and racial stereotypes in criminal trials. For example, courts have upheld convictions in cases where prosecutors have compared defendants who are people of color to Bengal tigers and other animals, even while acknowledging that such statements are "highly offensive and inappropriate" (Duncan v. Ornoski, 286 Fed. Appx. 361, 363 (9th Cir. 2008); see also People v. Powell, 6 Cal.5th 136, 182-83 (2018)). Because use of animal imagery is historically associated with racism, use of animal imagery in reference to a defendant is racially discriminatory and should not be permitted in our court system (Phillip Atiba Goff, Jennifer L.
Eberhardt, Melissa J. Williams, and Matthew Christian Jackson, Not Yet Human: Implicit Knowledge, Historical Dehumanization, and...
