Excerpted From: Marnie Lowe, Fruit of the Racist Tree: A Super-exclusionary Rule for Racist Policing under California's Racial Justice Act, 131 Yale Law Journal 1035 (January, 2022) (115 Footnotes) (Full Document)

MarnieLowe.jpegThe firestorm of protests for racial justice that took place across the United States following George Floyd's murder by police swept through California with no less fervor, from the state's small towns to its major cities. Passed in the wake of these protests, the California Racial Justice Act (RJA) of 2020 announced the state's goal of addressing racism throughout its criminal justice system. Included in the statute, but largely overlooked by supporters and detractors alike, is language that prohibits law enforcement officers from exhibiting racial bias or animus during a criminal case.

These little-heralded provisions related to law enforcement represent a novel and significant legal approach to deter and redress police racism. The California RJA provides the legal framework for what this Comment terms a "super-exclusionary rule" that, in effect, jeopardizes all charges, convictions, and sentences obtained subsequent to racist policing. Like the Fourth Amendment exclusionary rule, the super-exclusionary rule employs the formal criminal adjudication process to deter unwanted police behavior, but with far greater reach. If applied as proposed here, the super-exclusionary rule could secure permanent relief from criminal penalties for people of color and force substantial shifts in police behavior. Beyond its initial impact within the state, the rule's wider implications extend into national conversations on racism and policing, as well as the reverberations of each throughout the criminal legal system.

Part I of this Comment summarizes the intent behind and the structure of the California RJA. Using the Fourth Amendment exclusionary rule as a conceptual foil, Part II introduces the California RJA's super-exclusionary rule and argues that it represents an unprecedented legal remedy for police racism. Part III explores possible applications of the super-exclusionary rule and its potential to ameliorate racialized harms that the criminal legal system inflicts on people of color. In laying out the rule's operation and implications, this Comment calls for an imaginative and expansive approach not only to the California RJA, but also to conceptions of racist policing itself.

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As presented here, the super-exclusionary rule can be thought of as a type of in-kind sanction: any instance of racist inputs, in the form of police racial bias or animus, requires a reduction of racist outputs, in the form of criminal punishments that disproportionately harm people of color. If states genuinely commit themselves to combatting racism in their criminal legal systems, as California has stated that it intends to do, then this kind of systems-level calculus should increasingly find acceptance, and mechanisms that rely solely on conceptions of harm and guilt as individual, isolated phenomena should recede from popular use.

To aid that shift in perspective, all criminal legal actors committed to racial justice in California--whether defense attorneys, prosecutors, or judges--should accept the opportunity that the California RJA provides and facilitate extensive and creative litigation of claims that invoke the super-exclusionary rule, even those claims less likely to succeed under current legal conditions. And even though the California RJA was enacted on the now-fading energy of the George Floyd uprisings, advocates in other states should feel emboldened to pursue similar legislation whenever the political opportunity presents itself. Especially as its contours come into focus through litigation, the California RJA can serve as a template and inspiration for other legislation, or at least as an aspirational attempt on which others may improve. After all, California is no stranger to leading the way in pioneering criminal justice policy for the nation. The superexclusionary rule, as structured in the California RJA, may be the first of its kind, but it certainly should not be the last.

As of this writing, California's legislature is considering an amendment to the California RJA that would make it retroactive to all existing criminal convictions, dramatically increasing its scope. But even if the amendment should not come to pass, the accomplishments of the activists who took to the streets and the advocates who passed the California RJA into law should not be undervalued: the California RJA can and should result in the cumulative return of decades of people's lives, an incomplete but meaningful recompense for racist harms inflicted by police and the rest of the criminal legal system. Moreover, the California RJA and the super-exclusionary rule present an invitation to contemplate what it might look like for a state to commit fully to the cause of eliminating racist policing and what transformations of the law enforcement apparatus might occur as a result.

Yale Law School, J.D. expected 2022.