Legal Reform Advocates: Racial Justice Act Will Reshape California Death Row

When California​’s Racial Justice Act becomes applic­a­ble to the cas­es of pris­on­ers on the state’s death row begin­ning in January 2023, it will vast­ly reshape the legal land­scape of the state’s death penal­ty, legal reform advocates say.

The California Racial Justice Act for All, passed by the state leg­is­la­ture on August 28, 2020 and signed into law by Gov. Gavin Newsom September 29, pro­vides death-row pris­on­ers retroac­tive relief from con­vic­tions or death sen­tences that had been obtained ​“on the basis of race, eth­nic­i­ty, or nation­al ori­gin.” The law, experts say, has the poten­tial to vacate hun­dreds of death sen­tences imposed in the state since the 1970s.

“This is the biggest blow to the death penal­ty” since Newsom declared a mora­to­ri­um on exe­cu­tions and dis­man­tled the state’s exe­cu­tion cham­ber, said Natasha Minsker, a lawyer and pol­i­cy advis­er for the legal reform orga­ni­za­tion Smart Justice California, which pushed for pas­sage of the bill. Under the new law, ​“a lot of cas­es will get anoth­er look,” she told the San Francisco Chronicle, and “[i]f the law is applied the way it was intend­ed, the major­i­ty of those death sen­tences should be removed.”

“Black, brown and Indigenous com­mu­ni­ties have been plagued by racist poli­cies and over­rep­re­sent­ed in our pris­ons and courts for far too long,” Fatimeh Khan, co-direc­tor of the American Friends Service Committee’s California Healing Justice Program, said. ​“For those incar­cer­at­ed due to racial bias, [the new law] pro­vides a path for­ward to fight the sys­temic racism that has con­t­a­m­i­nat­ed our legal system.”

The act, which already has been applied to bar pros­e­cu­tors from seek­ing the death penal­ty because of racist com­ments and dis­crim­i­na­to­ry con­duct by police and pros­e­cu­tors in pend­ing cas­es, requires courts to over­turn a cap­i­tal con­vic­tion or death sen­tence 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.” Once a cap­i­tal con­vic­tion or death sen­tence has been over­turned, the law pro­hibits the state from again seek­ing or impos­ing the death penalty.

The law also requires vacat­ing death-row pris­on­ers’ con­vic­tions and/​or sen­tences when “[r]ace, eth­nic­i­ty, or nation­al ori­gin was a fac­tor” in the prosecution’s exer­cise of dis­cre­tionary jury strikes or when coun­ty pros­e­cu­tors charged or con­vict­ed them and oth­ers of their race, eth­nic­i­ty, or nation­al ori­gin of cap­i­tal mur­der in cir­cum­stances in which sim­i­lar­ly sit­u­at­ed defen­dants of oth­er races, eth­nic­i­ties, or nation­al ori­gins faced non-cap­i­tal charges or received less­er sen­tences. Relief is also required when a defendant’s death sen­tence con­sti­tut­ed a ​“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 leg­isla­tive spon­sor of the new law, Assembly Member Ash Kalra (D – San Jose), said the retroac­tive appli­ca­tion of the Racial Justice Act will pro­vide the courts an oppor­tu­ni­ty ​“to mean­ing­ful­ly address the stark racial dis­par­i­ties in our sentencing history.” 

The Death Penalty Information Center’s Death Penalty Census has iden­ti­fied 1,140 death sen­tences imposed on 1,076 cap­i­tal defen­dants in California since the 1970s. While U.S. cen­sus 2021 pop­u­la­tion estimates indi­cate that African Americans com­prise 6.5% of California’s pop­u­la­tion — a per­cent­age that has remained sta­ble for the past fifty years — they con­sti­tute 34.2% of those sen­tenced to death (368) in the state. By con­trast, non-Latinx whites, who have com­prised from 78% of the state’s pop­u­la­tion in 1970 to 35.2% in 2021, rep­re­sent 37.0% of those sen­tenced to death (398). The state’s Latinx pop­u­la­tion has ranged from 12% of California’s pop­u­la­tion in 1970 to 40.2% in 2021 and rep­re­sents 23.4% of those sen­tenced to death (252).

The San Francisco Chronicle report­ed that 28% of those cur­rent­ly incar­cer­at­ed in California state pris­ons are Black, 45.4% are Latinx, and 20% are white.