California Passes Legislation to Make Racial Justice Act Retroactive, Remove Permanently Mentally Incompetent Prisoners from Death Row

The California leg­is­la­ture has tak­en a major stride towards reform­ing the state’s death-penal­ty prac­tices, pass­ing two bills that would remove from death row indi­vid­u­als whose cap­i­tal con­vic­tions were the prod­uct of racial dis­crim­i­na­tion and those whose dete­ri­o­rat­ed men­tal con­di­tion has left them per­ma­nent­ly mentally incompetent. 

On August 31, 2022, the California Assembly con­curred in Senate Amendments and sent to the desk of Governor Gavin Newsom The Racial Justice Act for All, which makes retroac­tive the pro­vi­sions of a law enact­ed in 2020 that pro­vide for vacat­ing death sen­tences in which the con­vic­tion or sen­tence was obtained ​“on the basis of race, eth­nic­i­ty, or nation­al ori­gin.” The same day, fol­low­ing Assembly agree­ment to Senate amend­ments on August 23, the leg­is­la­ture sent to the gov­er­nor a bill that would cre­ate a mech­a­nism to remove from death row indi­vid­u­als found to be per­ma­nent­ly men­tal­ly incom­pe­tent. Both bills, which are expect­ed to reduce the size of California’s 684-per­son death row, are await­ing action from Gov. Newsom.

The Racial Justice for All Act

AB 256, known as The Racial Justice Act for All Act, passed the Assembly by a vote of 46 – 25 fol­low­ing Senate amend­ments. The bill expands the state’s 2020 Racial Justice Act, which applied to cas­es tried on or after January 1, 2021, to con­vic­tions obtained pri­or to that date. The 2022 bill cre­ates a phased-in time­line for pris­on­ers to apply for relief. Death-sen­tenced pris­on­ers and peo­ple fac­ing depor­ta­tion will be eli­gi­ble first, begin­ning on January 1, 2023. Over the fol­low­ing three years, eli­gi­bil­i­ty will expand to peo­ple incar­cer­at­ed for felonies, peo­ple with recent con­vic­tions, and peo­ple with old­er con­vic­tions who are no longer incarcerated.

Under the pro­vi­sions of the Racial Justice Act, ​“The state shall not seek or obtain a crim­i­nal con­vic­tion or seek, obtain, or impose a sen­tence on the basis of race, eth­nic­i­ty, or nation­al ori­gin.” The law pro­vides that a per­son con­vict­ed or sen­tenced in vio­la­tion of the act ​“shall not be eli­gi­ble for the death penalty.”

A death sen­tenced pris­on­er can be removed from death row if he or she can prove by a pre­pon­der­ance of the evi­dence that “[t]he judge, an attor­ney in the case, a law enforce­ment offi­cer involved in the case, an expert wit­ness, or juror exhib­it­ed bias or ani­mus towards the defen­dant because of the defendant’s race, eth­nic­i­ty, or nation­al ori­gin” or dur­ing the course of the defendant’s tri­al ​“used racial­ly dis­crim­i­na­to­ry lan­guage about the defendant’s race, eth­nic­i­ty, or nation­al ori­gin.” A death sen­tence also must be vacat­ed if the defen­dant was charged or con­vict­ed of a more seri­ous offense than sim­i­lar­ly sit­u­at­ed defen­dants of oth­er races, eth­nic­i­ties, or nation­al ori­gins and pros­e­cu­tors in the coun­ty ​“more fre­quent­ly sought or obtained con­vic­tions for more seri­ous offens­es against peo­ple who share the defendant’s race, eth­nic­i­ty, or national origin.” 

The bill received sup­port from numer­ous advo­ca­cy groups, includ­ing the Ella Baker Center for Human Rights, the League of Women Voters, and the ACLU. ​“The Legislature’s pass­ing of the Racial Justice Act for All affirms our state’s core val­ues of embrac­ing inclu­siv­i­ty and reject­ing the racism that divides us,” said Derick Morgan, Senior Policy Associate with the Ella Baker Center for Human Rights. ​“Though bruised by amend­ments,” he said, ​“the RJA for All expands our civ­il rights pro­tec­tions to impris­oned Californians, among oth­ers, so that every­one can chal­lenge the sys­temic bias and racism our high­est insti­tu­tions have inher­it­ed. Today, California shows that we will leave no one behind on our path to healing.” 

Assemblymember Ash Kalra, author of both the 2020 and 2022 bills, said, ​“Racial bias has played a role in our sys­tem since its incep­tion. There is no doubt that there will be indi­vid­u­als who will get the oppor­tu­ni­ty to have jus­tice, and cer­tain­ly indi­vid­u­als who will be able to get released from incar­cer­a­tion because they were able to show racial bias is what in part led them there.”

AB 256 ini­tial­ly passed the Assembly on June 1, 2021 by a 45 – 21 vote. It was held in com­mit­tee in the Senate until August 11, 2022 and passed the Senate with amend­ments 29 – 10 on August 29. The House con­curred in the amend­ments two days later.

Removing Those Who Are Permanently Mentally Incompetent from Death Row

One week before pass­ing the Racial Justice for All Act, the leg­is­la­ture also passed AB 2657, a bill that requires courts to vacate the death sen­tences of peo­ple who have become per­ma­nent­ly incom­pe­tent to be executed.

The bill clas­si­fies a per­son as ​“incom­pe­tent to be exe­cut­ed” if, ​“due to men­tal ill­ness or dis­or­der, an incar­cer­at­ed per­son is unable to ratio­nal­ly under­stand either the pun­ish­ment the incar­cer­at­ed per­son is about to suf­fer or why the incar­cer­at­ed per­son is to suf­fer it.” To qual­i­fy as per­ma­nent­ly men­tal­ly incom­pe­tent, the death-sen­tenced pris­on­er must be both ​“present­ly incom­pe­tent to be exe­cut­ed” and ​“The nature of the men­tal ill­ness or dis­or­der giv­ing rise to incom­pe­tence is such that the incar­cer­at­ed person’s com­pe­tence to be exe­cut­ed is unlike­ly to ever be restored.”

As part of the leg­isla­tive find­ings accom­pa­ny­ing the bill, AB 2657 item­izes con­di­tions and cir­cum­stances that can cause per­ma­nent incom­pe­tence, ​“includ­ing, but not lim­it­ed to, severe men­tal ill­ness non­re­spon­sive to treat­ment, brain trau­ma, or a degen­er­a­tive dis­ease, includ­ing age-relat­ed demen­tia, Alzheimer’s dis­ease, and Parkinson’s dis­ease.” The bill express­es ​“the intent of the Legislature that indi­vid­u­als who are per­ma­nent­ly incom­pe­tent to be exe­cut­ed be swift­ly and effi­cient­ly iden­ti­fied and resen­tenced, in order to pro­mote final­i­ty of judg­ment and effi­cient use of scarce state resources.” 

AB 2657 ini­tial­ly passed the Assembly on May 25, 2022 by a vote of 56 – 18. It passed the Senate with amend­ments from its author with a 29 – 10 vote on August 22. The Assembly con­curred in the amend­ments two days lat­er by a vote of 56 – 17.

The bill is part of a larg­er nation­al trend toward lim­it­ing the use of cap­i­tal pun­ish­ment against peo­ple with severe men­tal ill­ness. Ohio and Kentucky passed bills in 2021 and 2022, respec­tive­ly, to pro­hib­it the death penal­ty for peo­ple with seri­ous men­tal ill­ness. The California bill, if enact­ed, would not pro­hib­it peo­ple with men­tal ill­ness from being sen­tenced to death, but would reduce their sen­tences to life with­out parole if their men­tal ill­ness ren­dered them per­ma­nent­ly incom­pe­tent to be executed.