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.