California Finds a New Way to Be Soft on Crime

What would happen if lawmakers reinvented the criminal-justice system to target “systemic racism” instead of crime? California is about to find out. Thanks to a 2020 law called the California Racial Justice Act, every felon serving time in the state’s prisons and jails can now retroactively challenge his conviction and sentencing on the ground of systemic bias.

To prevail, the incarcerated prisoner need not show that the police officers, prosecutors, judge or jurors in his case were motivated by racism or that his proceedings were unfair. If he can demonstrate that in the past, criminal suspects of his race were arrested, prosecuted or sentenced more often or more severely than members of other racial groups, he will be entitled to a new trial or sentence.

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The Racial Justice Act’s drafters and supporters justify the exclusion of criminal history from statistical analysis via circular reasoning: They claim criminal history is infected by the same bias that infects everything else in the criminal-justice system. {snip} If a prosecutor tries to offer what the law calls “race neutral reasons” for either past prosecutions or the one under challenge, those reasons can themselves be discounted as the product of “systemic and institutional racial bias, racial profiling, and historical patterns of racially biased policing and prosecution.” {snip}

Court testimony now sounds like a critical race studies course. When a felon in San Francisco contested his arrest and prosecution for having a loaded handgun in his car, a “race expert” testified that the arresting officer’s use of the phrase “high crime area” demonstrated “bias against people of color.” The trial judge disagreed, but an appeals court reversed and allowed the felon’s claim to proceed. (Speaking of bias, that same expert, Dante King, asserted at the University of California, San Francisco, on Feb. 8 that “whites are psychopaths” whose “behavior represents an underlying, biologically transmitted proclivity.”)

On Feb. 14, a state appellate court in San Diego held that a police officer can be guilty of implicit bias against black drivers even if he doesn’t know the race of the driver he stops. Not surprisingly, defense attorneys are now tacking on Racial Justice Act claims to almost any case involving minority defendants.

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A case from Contra Costa County last year shows the snowballing potential of the Racial Justice Act. A judge found that four black gang members who had committed murder as part of a bloody feud between two Oakland gangs had been improperly sentenced to life in prison without parole. That conclusion wasn’t based on flaws in the four defendants’ trials, but simply on an alleged historical pattern of sentencing bias toward black gang murderers. The black comparison group in the case was made up of 30 black defendants who had also committed gang murder in Contra Costa County from 2015 to 2022 and who had also received life without parole. All 30 can now sue to erase those sentences.

{snip} Racial disparities in prosecuting and sentencing reflect disparities in criminal offending. In Los Angeles, blacks are 21 times as likely as whites to commit a violent crime, 36 times as likely to commit a robbery, and 57 times as likely to commit a homicide, according to police department data. {snip}

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