Excerpted From: Hannah Laub, How California's Racial Justice Act of 2020 Protects Criminal Defendants from Racial Discrimination and Why the Equal Protection Clause Is Not Enough, 26 Richmond Public Interest Law Review 113 (March 29, 2023) (208 Footnotes) (Full Document)


HannahLaubCriminal convictions in the United States have far-reaching consequences that go beyond incarceration. Convictions impact an individual's ability to secure employment, housing, and transportation, making it more difficult to escape the cycle of poverty. They may also result in immigration consequences, having one's right to vote or own a firearm rescinded, and stigma. Criminal convictions sometimes even result in death. The question of whether incarceration and other consequences of criminal convictions actually advance any legitimate societal interests is not the subject of this paper. A brief review of these consequences instead serves to highlight the injustice of stark racial disparities in criminal convictions. Black and Hispanic Americans make up 32% of the U.S. population, but 56% of the U.S. incarcerated population. If Black and Hispanic Americans were incarcerated at the same rates as white Americans, the U.S. jail and prison populations would decrease by roughly 40%. Black Americans in particular are incarcerated five times more than white Americans, and Black men receive sentences 19.1% longer than similarly situated white men. When our criminal legal system treats people differently according to their race, the impact of that racism extends far beyond the walls of a prison cell. When so much is at stake, an avenue to challenge racial discrimination in the criminal legal system is critical.

This article explores how the Equal Protection Clause of the Fourteenth Amendment fails to adequately protect criminal defendants from racial discrimination in the legal system, and how recent legislation in California provides an example for reform. It also briefly examines the attempts at reform that paved the way for this legislation. California's Racial Justice Act of 2020 enables criminal defendants to use statistical evidence to demonstrate racial discrimination by the state, which can provide more protection to criminal defendants impacted by racial discrimination.

Part I defines racial discrimination and identifies the types of biases that perpetuate it. Part II explores how racial discrimination manifests in the criminal legal system through the creation of laws, policing, and case processing. Part III explains that, despite racial discrimination being unconstitutional, the Supreme Court's interpretation of the Equal Protection Clause of the Fourteenth Amendment makes it difficult for criminal defendants to successfully litigate race-based discrimination claims. Part IV demonstrates how racial discrimination manifests in the administration of the death penalty and explores various failed attempts to ease the burden defendants face in challenging race-based discrimination in the death penalty context. Finally, Part V explores why California's Racial Justice Act of 2020 is an example of legislation that will enable criminal defendants to obtain relief more easily from racial discrimination in the criminal legal system.

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There are significant limitations to California's Racial Justice Act. The Act as originally passed was not retroactive. Until later legislation remedied this, people who were subjected to racial discrimination in the criminal legal system before January 1, 2021, did not have an opportunity to obtain relief. The law is also limited to the State of California, so the Supreme Court's McCleskey decision continues to set an impossibly high bar for criminal defendants who experience racial discrimination in the criminal legal system throughout the United States. However, the Racial Justice Act is an example of concrete action that legislatures can take to reduce racial discrimination in the criminal legal system. Combined with California's Assembly Bill 3070, which reduces counsel's ability to strike potential jurors based on race, California has protected constitutional rights that the McCleskey and Batson left vulnerable through the California Racial Justice Act of 2020.

Hannah Laub is a third-year law student at the University of Richmond School of Law. She earned her B.A. in Sociology from Kenyon College in 2016 and completed two years of AmeriCorps service before starting law school.