California Legislature Passes Racial Justice Package Affecting Death-Penalty Practices

In the clos­ing days of its 2020 leg­isla­tive ses­sion, the California leg­is­la­ture passed a trio of racial jus­tice reform bills expect­ed to reduce the influ­ence of racial, eth­nic, and socioe­co­nom­ic bias in the admin­is­tra­tion of the death penal­ty in the state with the country’s largest death row. 

On August 28, 2020, the California sen­ate gave its final approval to Assembly Bill 2512, which amends California’s death penal­ty intel­lec­tu­al dis­abil­i­ty statute to pro­hib­it the use of race-based IQ adjust­ments in deter­min­ing a defendant’s or death-row prisoner’s eli­gi­bil­i­ty for the death penal­ty. On August 31 — the last day to con­sid­er bills on the legislature’s COVID-short­ened agen­da — the sen­ate and the state assem­bly approved and sent to the gov­er­nor amend­ed ver­sions of a statewide Racial Justice Act to com­bat racial dis­crim­i­na­tion in crim­i­nal pros­e­cu­tions and sen­tenc­ing and a bill that would fight racial, eth­nic, reli­gious, and gen­der dis­crim­i­na­tion in jury selec­tion. The lat­ter bill emerged from the sen­ate at 11:40 p.m. and passed the assem­bly at 11:55 p.m., over efforts by pros­e­cu­tion lob­by­ists to pre­vent a vote before the mid­night end of the legislative session. 

AB-2512 applies to all death penal­ty cas­es in which a defen­dant or death-row pris­on­er alleges inel­i­gi­bil­i­ty for the death penal­ty because of intel­lec­tu­al dis­abil­i­ty. AB-2542, the California Racial Justice Act, applies to all crim­i­nal cas­es in which the tri­al court judg­ment is issued on or after January 1, 2021. AB-3070, the jury selec­tion reform, takes effect for crim­i­nal tri­als begin­ning on January 1, 2022 and for civ­il tri­als begin­ning on January 1, 2026. 

The bills now go to Governor Gavin Newsom for his sig­na­ture or veto. On March 13, 2019, Governor Newsom imposed a mora­to­ri­um on exe­cu­tions in California.

Revisions to California’s Death Penalty Intellectual Disability Statute

The state leg­is­la­ture over­whelm­ing­ly approved AB-2512, which com­bats racism in assess­ing whether a cap­i­tal defen­dant or death-row pris­on­er is intel­lec­tu­al­ly dis­abled and there­fore inel­i­gi­ble for the death penal­ty. It also brings the age require­ment at which a person’s intel­lec­tu­al and func­tion­al impair­ments first become appar­ent into line with pre­vail­ing med­ical def­i­n­i­tions of intel­lec­tu­al dis­abil­i­ty. The state assem­bly approved the bill by a vote of 57 – 0 on June 15, 2020. The sen­ate fol­lowed suit by a vote of 29 – 1 on August 28.

The bill makes two mate­r­i­al changes in California law. First, it bars pros­e­cu­tion experts and judges from using racial, eth­nic, or socioe­co­nom­ic ​“adjust­ments” to inflate a person’s IQ scores, poten­tial­ly rais­ing their scores so the per­son falls out­side of the IQ-based require­ment of ​“sig­nif­i­cant­ly sub­av­er­age intel­lec­tu­al func­tion­ing.” Such adjust­ments can make peo­ple of col­or eli­gi­ble for exe­cu­tion when whites with iden­ti­cal IQ test results are not.

Second, the bill requires that the intel­lec­tu­al and adap­tive deficits asso­ci­at­ed with intel­lec­tu­al dis­abil­i­ty man­i­fest them­selves ​“before the end of the devel­op­men­tal peri­od, as defined by clin­i­cal stan­dards.” This relax­es the lan­guage of California’s cur­rent law, which requires that these deficits be present ​“by age 18.” The new lan­guage would bring the California statute into line with the diag­nos­tic cri­te­ria in the DSM‑5, the lat­est edi­tion of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders.

California pros­e­cu­tors opposed both changes, argu­ing that the pro­hi­bi­tion against racial adjust­ments addressed an imag­i­nary prob­lem and that link­ing the age of onset to the devel­op­men­tal peri­od rather than a fixed age cre­at­ed ​“a vague and prej­u­di­cial loop­hole.” Retired homi­cide pros­e­cu­tor Angela Backers, the co-chair of the California District Attorneys Association’s cap­i­tal lit­i­ga­tion com­mit­tee, dis­put­ed that pros­e­cu­tors attempt­ed to inflate the IQ scores of Black and Latinx defen­dants. ​“Where’s the proof of that?” she said. ​“Where is the proof where pros­e­cu­tors inflate the IQs of peo­ple of color?”

In 2014, the California Supreme Court accept­ed the tes­ti­mo­ny of a pros­e­cu­tion expert in In re Champion that ​“it is prefer­able to use eth­ni­cal­ly cor­rect­ed norms when scor­ing [psy­cho­log­i­cal] tests” because ​“Blacks ordi­nar­i­ly per­form more poor­ly than Whites on those tests.” Four years lat­er, in In re Lewis, the court again not­ed that the pros­e­cu­tion’s expert had advo­cat­ed racial and socioe­co­nom­ic adjust­ment of IQ scores. Proponents of the bill also pro­vid­ed leg­is­la­tors with copies of a 2015 law review arti­cle by Santa Clara Professor of Law and Forensic Science Robert Sanger detail­ing the mis­use of eth­nic adjust­ments to IQ test scores in death penalty cases. 

The bill’s spon­sor, Assemblyman Mark Stone (D‑Scotts Valley), said, ​“All we’re real­ly doing is updat­ing the state of the sci­ence used to deter­mine intel­lec­tu­al dis­abil­i­ties and devel­op­men­tal dis­abil­i­ties to what is cur­rent­ly being used. … There are peo­ple who are sit­ting on death row who shouldn’t be there and don’t need to be there. That’s what we’re try­ing to rectify.”

The California Racial Justice Act

The California Racial Justice Act pro­hibits the state from seek­ing or obtain­ing a con­vic­tion or impos­ing a sen­tence ​“on the basis of race, eth­nic­i­ty, or nation­al ori­gin.” The bill would require over­turn­ing a con­vic­tion or sen­tence for dis­crim­i­na­to­ry con­duct, including:

• When the judge, a lawyer, a law enforce­ment offi­cer, an expert wit­ness, or a juror in the case ​“exhib­it­ed bias or ani­mus towards the defen­dant because of the defendant’s race, eth­nic­i­ty, or nation­al ori­gin” or ​“used racial­ly dis­crim­i­na­to­ry lan­guage about the defendant’s race, eth­nic­i­ty, or national origin”;
• When “[r]ace, eth­nic­i­ty, or nation­al ori­gin was a fac­tor” in the prosecution’s exer­cise of dis­cre­tionary jury strikes;
• When a defen­dant who is charged or con­vict­ed of a more seri­ous offense than sim­i­lar­ly sit­u­at­ed defen­dants of oth­er races, eth­nic­i­ties, or nation­al ori­gins shows that coun­ty pros­e­cu­tors ​“more fre­quent­ly sought or obtained con­vic­tions for more seri­ous offens­es against peo­ple who share the defendant’s race, eth­nic­i­ty, or national origin”;
• When a defen­dant receives “[a] longer or more severe sen­tence … than was imposed on oth­er sim­i­lar­ly sit­u­at­ed indi­vid­u­als con­vict­ed of the same offense,” and indi­vid­u­als of his or her race, eth­nic­i­ty, or nation­al ori­gin more fre­quent­ly receive longer or more severe sen­tences than oth­er defen­dants in the coun­ty where the sen­tence was imposed.
• When a defen­dant receives “[a] longer or more severe sen­tence … than was imposed on oth­er sim­i­lar­ly sit­u­at­ed indi­vid­u­als con­vict­ed of the same offense, and longer or more severe sen­tences were more fre­quent­ly imposed” in the coun­ty based on the race, eth­nic­i­ty, or nation­al ori­gin of the victim.

The California District Attorneys Association opposed the bill, assert­ing that its poten­tial­ly broad appli­ca­tion would bring the court sys­tem to a halt. The bill does not require the dis­crim­i­na­tion in a case to be pur­pose­ful and does not require the defen­dant to prove that the dis­crim­i­na­tion adverse­ly affect­ed the out­come of the case.

The bill’s spon­sor, for­mer Santa Clara County deputy pub­lic defend­er Ash Kalra said the bill was nec­es­sary because the U.S. Supreme Court’s 1987 deci­sion in McCleskey v. Kemp reject­ing sta­tis­ti­cal evi­dence as proof of dis­crim­i­na­tion in cap­i­tal cas­es and requir­ing evi­dence of inten­tion­al dis­crim­i­na­tion in the defendant’s case insu­lat­ed racial dis­par­i­ties from judi­cial review. In an inter­view with San José Spotlight, Kaira said that, in many ways, ​“the unin­ten­tion­al sys­temic bias­es … are even more per­va­sive and dam­ag­ing” than inten­tion­al bias in indi­vid­ual cas­es. ​“It’s impos­si­ble to ignore the racial dis­par­i­ties that exists when you look at those that are pros­e­cut­ed and those that are sent away to prison.” 

The Racial Justice Act passed the state assem­bly by a vote of 76 – 0 on June 8. It was amend­ed in the Senate Appropriations Committee on August 20 to lim­it it to future cas­es. The full sen­ate approved the amend­ed bill by a vote of 26 – 10 on August 31, and the assem­bly con­curred in the amend­ments by a vote of 49 – 16.

Discrimination in Jury Selection

The leg­is­la­ture also approved a major reform in jury selec­tion prac­tices, bar­ring the use of dis­cre­tionary strikes to remove a prospec­tive juror when­ev­er ​“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 chal­lenge to the juror. 

A land­mark study released by the Berkeley Law School Death Penalty Clinic in June 2020 found ​“per­va­sive” use of peremp­to­ry chal­lenges by California pros­e­cu­tors ​“to exclude African Americans and Latinx cit­i­zens from juries.” The study, Whitewashing the Jury Box: How California Perpetuates the Discriminatory Exclusion of Black and Latinx Jurors, report­ed that over a 30-year peri­od between 1989 and 2019, the California Supreme Court had reviewed 142 cas­es in which defen­dants had argued that the pros­e­cu­tion had uncon­sti­tu­tion­al­ly exer­cised its dis­cre­tionary strikes to dis­crim­i­na­to­ri­ly remove jurors of col­or but had found con­sti­tu­tion­al vio­la­tions only three times. The authors described the state court’s record in enforc­ing the con­sti­tu­tion­al pro­hi­bi­tion against dis­crim­i­na­tion in jury selec­tion as ​“abysmal.”

The dis­en­fran­chise­ment of Black jurors was even more pro­nounced in cap­i­tal cas­es, the researchers found because of the death-qual­i­fi­ca­tion process, which per­mits pros­e­cu­tors to exclude jurors whose per­son­al oppo­si­tion to cap­i­tal pun­ish­ment would sub­stan­tial­ly impair their con­sid­er­a­tion of the death penal­ty. ​“African Americans’ rel­a­tive­ly high­er oppo­si­tion to the death penal­ty leads to their dis­pro­por­tion­ate removal from juries in cap­i­tal cas­es,” the authors said, cre­at­ing anoth­er lay­er ​“of the jury selec­tion process that con­tributes to the white­wash­ing of juries.”

Sen. Scott Wiener (D‑San Francisco), the bill’s sen­ate spon­sor, described the bill as being ​“about end­ing what has been going on for many, many years in this coun­try, specif­i­cal­ly the exclu­sion of Black and brown com­mu­ni­ties from juries.” Wiener said called the exclu­sion of jurors of col­or ​“a prob­lem that … under­mines con­fi­dence in the entire system.” 

The bill changes California law so that a par­ty chal­leng­ing an opponent’s use of a dis­cre­tionary strike no longer has to prove that oppos­ing coun­sel inten­tion­al­ly struck the juror because of race, eth­nic­i­ty, reli­gion, or sex, and expand­ed the class of prospec­tive jurors to be pro­tect­ed against dis­crim­i­na­tion. It also declares a wide range of rea­sons pros­e­cu­tors have assert­ed for strik­ing jurors of col­or to be pre­sump­tive­ly invalid. These include:

• Expressing a dis­trust of or hav­ing a neg­a­tive expe­ri­ence with law enforce­ment or the crim­i­nal legal system.
• Expressing a belief that law enforce­ment offi­cers engage in racial pro­fil­ing or that crim­i­nal laws have been enforced in a discriminatory manner.
• Having a close rela­tion­ship with peo­ple who have been stopped, arrest­ed, or con­vict­ed of a crime.
• A prospec­tive juror’s neighborhood.
• Having a child out­side of marriage.
• Receiving state benefits.
• Not being a native English speaker.
• The abil­i­ty to speak another language.
• The juror’s dress, attire, or personal appearance.
• Employment in a job dis­pro­por­tion­ate­ly held by mem­bers of the protected group.
• Unemployment or underemployment.

The state pros­e­cu­tors’ asso­ci­a­tion opposed the bill, argu­ing that the leg­is­la­ture should delay address­ing the issue until a work­ing group formed by California Supreme Court com­pletes a study of jury selec­tion and issues recommendations. 

The bill passed the assem­bly on June 11 by a vote of 53 – 16. It was amend­ed in a sen­ate com­mit­tee to delay its effec­tive dates, failed in its ini­tial sen­ate floor vote on August 30, and then, after recon­sid­er­a­tion, passed by a vote of 21 – 16 twen­ty min­utes before mid­night on August 31. Five min­utes before the end of the leg­isla­tive ses­sion, the assem­bly agreed to the sen­ate amend­ments by a vote of 49 – 17, send­ing the bill to the gov­er­nor for his consideration.