On August 31, 2020, the California Legislature passed two sweeping bills aimed at confronting racial bias in the state’s criminal justice system.
Assembly Bill 3070 tackles illegal racial discrimination in jury selection. Although the U.S. Supreme Court ruled more than 30 years ago that excluding prospective jurors because of their race is unconstitutional, people of color continue to be excluded from jury service because of their race, especially in serious criminal trials and death penalty cases.
As a recent Berkeley Law report revealed, California prosecutors routinely strike Black and Latino prospective jurors—and the state’s appellate courts have failed to meaningfully address racial discrimination in jury selection.
The new bill seeks to “eliminat[e] the use of group stereotypes and discrimination, whether based on conscious or unconscious bias” by requiring prosecutors to explain their reasons for removing jurors of color as soon as the defense objects. Modeled on successful reforms in Washington, the law instructs trial judges to find that a strike is illegal if 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 in the use of the peremptory challenge.”
Additionally, AB 3070 designates certain reasons—historically shown to operate as stand-ins for racial bias—as presumptively invalid. For example, prosecutors may no longer rely on prospective jurors’ distrust of law enforcement, previous contacts with the criminal justice system, neighborhood, native language, demeanor, or personal appearance to exclude them from jury service.
The second law, Assembly Bill 2542, titled the “California Racial Justice Act,” is more far-reaching. It would prohibit prosecutors from seeking, obtaining, or imposing a criminal conviction or sentence on the basis of race, ethnicity, or national origin.
The bill gives defendants an opportunity to challenge a range of discriminatory trial practices, including racial bias in jury selection. Evidence that a judge, attorney, law enforcement officer, expert witness, or juror “used racially discriminatory language“ or otherwise “exhibited bias or animus towards the defendant” at trial could establish a violation of the Racial Justice Act.
The new law also allows defendants to prove that their convictions or sentences were racially motivated by presenting evidence that other people of color were more frequently charged with more serious offenses or received more severe sentences than white people.
Advocates have been pushing lawmakers for years to address racial bias in the criminal justice system without much success. Several versions of the federal Racial Justice Act, which would have permitted death-sentenced individuals to challenge their sentences using statistical proof of racial discrimination, appeared before Congress between 1988 and 1994 and failed to pass each time.
North Carolina’s ground-breaking Racial Justice Act, enacted in 2009, was the first law aimed at remedying racially discriminatory practices in death penalty trials, including racial bias in jury selection. It required courts to vacate a death sentence if race was a factor in the imposition of the death penalty. But after the first four death-sentenced people to file a Racial Justice Act claim successfully proved that race was a factor in the State’s jury strikes at their capital trials and had their death sentences vacated, the law was repealed in 2013.
The passage of these bills in California represents a substantial legislative response to longstanding disparities in the criminal justice system and persistent racial bias in jury selection. The bills are currently awaiting Governor Newsom’s signature. He has until September 30 to act.