It’s been nearly half a decade since the California legislature enacted the California Racial Justice Act (CRJA), PC 745, and reset the rules by which criminal defendants can use the courts to undo the structural racial bias that infects the criminal justice system to challenge their convictions and sentences via discovery motions. Sadly, too few legal lifeguards are watching the beach to protect swimmers in this new ocean of possibility from the good cause calculus riptide that still allows too many otherwise substantive challenges to prematurely drown. Too many upside down cases are being lobbed into the courts by lay defendants without the teeth that only a properly focused collaboratory of legal sharks might deliver to their claims. Who will stand in the gap and orient the cause toward effective intervention?
Pardon the beach metaphors, but it looks to us like too many capable legal minds are standing on the sandbar and just watching folks drown as they attempt to swim from the shore pound of ignorance. Too few litigants know how to swim in these waters and not enough aid is being rendered to those who need it. “Lots of well-funded lawfare sourced by the left got thrown at former President Donald Trump in order to keep him from intervening on illegal migration, and truck loads of Soros money got dumped into DA races as a way to minimize racialized prosecutions,” says Torrey Thomas, a Black youth offender preparing to parole from Valley State Prison (VSP), “but if the left really cared about the plight of Black and Brown bodies, and truly opposed the carceral state, why wouldn’t the left be coordinating money in service of law clinics focused on getting folks in California out of prison using the CRJA?”
If the Biden administration can justify washing billions of dollars through NGOs in order to coordinate illegal migration, why not fund freedom advocacy?
Ken Coley, a Black second striker who committed a robbery and carjacking without violence in Lancaster, California, was sentenced to over eighty years to life, while Steve Rosen, a White second striker who shot a woman in the face—killing her—and was found guilty of second degree murder in Santa Rosa, was sentenced to less than twenty years to life. Non-violent Black repeat offenders in White counties who get stretched while violent White repeat offenders in White counties slide, reflects a snapshot of racialized injustice the CRJA was designed to remedy—it freezes the problem for all to see, it’s a postcard from the edge that too few want to acknowledge.
“These travesties are living on every prison yard in the state out here,” observes Thomas, “so why isn’t anybody helping us do something constructive about it? Why are all these brothers stacked up in the law libraries firing off these half-baked motions that fail while sitting on good fact-sets that would otherwise prevail, if only marshalled properly? We need advocates, not rhetoric. These well-intended academics need to stop writing books and start writing briefs.” It makes us wonder how come the state boasting some of the most progressive law school faculties—UC Berkeley, Stanford, and UCLA—and an adult prison population with a functional illiteracy rate of 38%, doesn’t have any coordinated plan that centers this wide open opportunity to deliver freedom to those most impacted by the system’s structural racial bias, and helps those most unlearned in the law to pursue those claims properly.
Where are the lawyers? Where are the law clinics? Where are the Universities? Where are the funders? Where is the left?
There are many solid defenders of freedom working to save those swallowed by a defective legal system—University-backed law clinic efforts around the country have been toiling in the arena for years, marshalling law school students in service of outcomes that seek to liberate those who can’t afford representation. As well, these clinics also attempt to solve less sexy inequities living within the prison industrial complex, as did the Stanford Criminal Justice Center at Stanford Law School and the Warren Institute at UC Berkeley’s School of Law—when lawyers Debbie Mukamal and Rebecca Silbert spearheaded an eighteen-month strategic landscape analysis revealing that, though it had the capacity and mission, the state’s public higher education system wasn’t serving incarcerated and formerly incarcerated learners. That effort built the state’s current in-prison college degree ecosystem now improving carceral literacy and public safety.
For the CRJA, there is too little legal activism in California around an opportunity begging for an army of interventionists who might deliver freedom to thousands of imprisoned Black and Brown citizens.
In a recent phone conversation with our Vanguard Carceral Journalism Guild Fellowship program advisor Elizabeth Hinton, a professor of Law at Yale Law School, and the co-director of the Institute on Policing, Incarceration, and Public Safety at the Hutchins Center for African & African American Research at Harvard University, she explained how the “equal protection clause has long-since framed the most viable legal path for how best to use declassified public records, statistics, and legislative intent to build a historicized evidentiary vault that can be deployed in service of the many challenges made by defendants who have been subjected to racial bias while prosecuted and sentenced.”
Considered one of the nation’s preeminent carceral studies scholars, as a professor of History and African American Studies at Yale University, and the author of From The War On Poverty To The War On Crime: The Making Of Mass Incarceration in America (Harvard University Press, 2016), Hinton understands the power-shifting leverage a well-aimed effort of legal assistance can deliver to folks who need it. Sadly, for the more than 90,000 bodies caged in California’s more than 30 prisons, she and Yale Law School’s Justice Collaboratory are situated more than 3,500 miles away, and too few in-state law clinics have taken up the cause to maximize the unique opportunity the CRJA presents to those who profess to care about removing racial bias from the justice system to do something profound about it. Hinton can’t single-handedly save everybody—California’s legal and academic communities need to step up.
Race-based selective prosecution being the equal protection analogue to a statutory theory of racially disparate treatment under the CRJA, California’s legislature set out to depart from the federal equal protection law paradigm of discriminatory purpose rooted in specified intentionality, by crafting a law that purges racial discrimination to ensure race plays no role at all in seeking or obtaining convictions or in sentencing, by ensuring that defendants have access to all relevant evidence, statistical data, and records or information necessary to prove one of the four available violations outlined in the CRJA could or might have occurred. A multi-factor test of good cause being the main threshold consideration, defendants who can pass that test need only present a plausible factual foundation that is far less rigorous than the prima facie showing demanded by the equal protection clause. In California, the CRJA presents a real chance to scrub bias and deliver freedom using an objectively lower legal standard that is easier to prevail with.
So, where are lawyers?
With the CRJA, there is no affidavit requirement comparable to the Pitchess context, no materiality requirement logically linking defenses to charges, and defendants enjoy a reset of the good cause standard below the rigor imposed by Armstrong, Griffin, and Murgia circa 1990. This very issue was forecast by the Supreme Court via Justice Brennan’s dissent in the McCleskey death penalty case, which argued that the statistical data the court voted 5-4 to deem merely a “discrepancy” was much more. Brennan painted the statistical data as indicative of the racial bias infecting the process structurally. He described the majority’s fear of opening a door to widespread challenges to all aspects of criminal sentencing as a “fear of too much justice.”
The CRJA represents the sort of express statutory provision authorizing defense-side discovery that is self-executing and compels disclosures upon a motion supported by good cause seeking whatever form of disclosures that will give the defense access to the very sorts of information troves that the best carceral studies scholars have been sifting through for years. Who is better equipped to connect these dots than the African American Studies and Public Policy historians who have been scouring the data related to mass incarceration?
In California at least, the CRJA seems to have contemplated precisely the sort of scholarship folks like Hinton, Heather Ann Thompson, Rachel Barkow, and Bruce Western have brought to the analysis of mass incarceration writ large for years by excavating the very sorts of data defendants are now permitted to marshal in order to construct a plausible factual foundation showing of good cause. For four years, a California state law has existed that was designed to incorporate the historicized multi-discipline knowledge base of evidence previously deemed insufficient to establish discriminatory intent, but that is now ideally ripe to help thousands gain freedom.
If only they can access it.
