Last week, the California Supreme Court issued the first ruling in a series of cases interpreting the state’s Racial Justice Act (RJA), a landmark law aimed at eradicating racial bias from criminal prosecutions. In its ruling, the court reversed a death sentence imposed after a prosecutor compared a black defendant to a “Bengal tiger.” But in other cases, the two justices argued, the court narrowed the law’s protections by raising the bar for RJA violations and leaving “innocuous” violations unremedied, contrary to the law’s letter and broad remedy purpose.

California’s RJA, enacted in 2020, is the only law of its kind in the nation. In enacting this law, Congress declared that its purpose was to eliminate bias based on race, ethnicity, or national origin “in any form or amount at any stage of criminal justice.” Similarly, lawmakers are acting on a “growing awareness that racial bias of any degree or amount is unacceptable in a fair and just criminal justice system,” and that systemic or implicit bias can undermine equity to the same extent as explicit bias or intentional discrimination. Among its rules, the RJA prohibits language during a criminal trial, whether by prosecutors, judges, witnesses, or defense attorneys, that “implicitly appeals to racial bias,” even if it is not “purposeful.” With this broad power, the RJA’s goal is not to punish racists, or even to identify instances where discrimination changed outcomes. It is about eliminating racial bias from the legal system, whatever its form or role in a particular case.

To this end, the Act provides broad and mandatory remedies for violations. If the court finds a violation in the appellate court, “will do “Voice the conviction and sentence” (if the violation was committed in a sentencing proceeding, vacate only the sentence) After a violation in a capital case, the law provides that “the defendant is not eligible for the death penalty.”

In addition to confronting the insidious harm of implicit bias, the RJA also recognized the court’s failure to address it. In exercising the right to a fair trial, the United States Supreme Court urges proof that: intentional Discrimination before granting judicial remedies. This also applies to jury selection. Batson vs. Kentuckydecided in 1986 and banned. intentionally Excluding potential jurors based on race. And that applies to sentencing as well. mcclexie vs campdecided a year later, racial disparities alone are not sufficient to establish that a death sentence is inappropriate on the basis of race. The California Legislature explicitly rejected the RJA. McCleskeydeclared, “We can no longer accept racism and racial disparities in the criminal justice system as inevitable.”

In last week’s decision, the California Supreme Court for the first time considered the scope of the RJA, specifically in death penalty cases tried before the law took effect. In the case of Anthony Bankston, the court found a violation and vacated the death sentence after prosecutors likened him to a Bengal tiger in a zoo. Prosecutors told jurors the well-worn story of a journalist first observing a Bengal tiger at a zoo and “seeing it really lethargic” before going to see it in the wild. There, he reportedly spotted a tiger “bent over, claws visible, fangs visible, growls audible.” Prosecutors implied that jurors should think of defendants the same way, appearing in court at one time and appearing at another when not in front of jurors.

The Bengal tiger story has historically been so common in California prosecutors that Congress used it as a specific example of an RJA violation. The state’s attorney general also acknowledged that the story unfairly alleges racial bias and provoked comparisons to hyperpredatory animals that have long been used to dehumanize and criminalize black men. As Judge Goodwin Liu wrote in a concurring opinion, this violation of the RJA was “fairly obvious.”

But beyond this finding, Mr. Liu and (among others) Justice Kelly Evans criticized the court’s unilateral curtailment of the RJA, both in terms of what constitutes a violation and whether a particular violation is “harmless” and can be left uncured.

Regarding the scope of the RJA violation (i.e., language that unfairly appeals to prejudice), the court declined to find a violation based on other comparisons between animals and non-white defendants, despite the legislative finding that “because the use of animal images is historically associated with racial discrimination, the use of animal images referring to defendants is racially discriminatory and should not be permitted in our court system.”

In one case, a prosecutor described a Mexican defendant as “inhumane” and an “animal,” but I don’t mean to insult animals. In another case, a prosecutor called a black defendant a “predator” and a “wolf in sheep’s clothing.” combine with bankstonThese decisions “curiously hold that a black defendant violates the RJA when compared to a violent, predatory tiger, but not when compared to a violent, predatory wolf,” Liu wrote. According to the majority, the difference lies in the way each reference was made. “But Congress did not intend for courts to narrow RJA’s prohibitions by using such modifiers,” Liu continued. “Comparing black defendants to violent, predatory animals, in any manner or manner, carries significant risks of dehumanization, moral exclusion, and unduly harsh punishment.”

The court also declined to find violations based on cultural or national stereotypes. In one case, the defendant’s immigration status was repeatedly raised in the disciplinary trial, including expert testimony that being “illegal” was a risk factor for child abuse. In another case involving a defendant of Cambodian origin, “prosecutors” “invoked cultural scripts to set jurors’ expectations about how Cambodian immigrants should behave, and used those stereotypes to castigate (the defendant) as a deviant who did not conform to the expectations associated with his ethnicity,” Liu wrote. Such “inappropriate references to nationality, race, or immigration status” can cause unconscious bias and are therefore a clear violation of the RJA, Liu said.

Mr. Liu and Mr. Evans, writing separately, said the court undermined RJA by ignoring claims of racial bias made in service of a message that the jury could properly consider. Mr Evans added: “I don’t think this point can be stressed enough: claims of racial bias are not excused or mitigated simply because they are part of an apparent effort to comment on considerations fairly presented to the jury.” “After all, RJA is not limited to adjectives thrown out for no reason, which are not fair comments on the evidence,” she said. “Such language was already illegal before the RJA was enacted.”

In addition to narrowly defining a violation, the court diluted two other core features of the RJA: the automatic remedy system and the prohibition on the death penalty following a violation. In both cases, the court invoked the doctrine of “constitutional avoidance,” based on a narrow legal interpretation of the need to avoid difficult constitutional issues.

First, the court found that the RJA created a “harmless error” standard for cases that attempted to be decided before it took effect in 2021. Only Mr. Evans disagreed on this point. In response to this decision, the court stated, “The use of language that suggests racial bias is not grounds for revocation if (the state) can prove that the use of such language is harmless beyond a reasonable doubt.”

The court’s analysis on this point involves a complex mix of statutory and constitutional interpretation, and ultimately misses the forest for the trees. In fact, the RJA limits relief to “petitions” in cases filed before the RJA was enacted if “the state proves beyond a reasonable doubt that the violation did not contribute to the judgment.” Although the term “petition” generally refers to habeas corpus petitions filed after appeals have been exhausted and a judgment has been entered, Evans noted that four cases before the court are still under direct appeal. However, the majority noted that interpreting “petition” to exclude these cases would require automatic revocation under the RJA. This could conflict with the state’s 1911 constitutional amendment to the extent that errors in California’s criminal trials warrant relief.courtroom” found that there had been a “miscarriage of justice.” Finding ambiguity as to the meaning of “petition,” the court chose to apply harmless error review to direct appellate cases as well. The court avoided the “serious constitutional problem” posed by the 1911 amendments by retaining the court’s role in evaluating whether relief is warranted.

RJA’s lead author, Rep. Ash Kalra, alerted the court to this outcome in a court brief. “Interpreting the Racial Justice Act to grant relief only if the defendant is biased would be contrary to the purpose of Congress, because it would permit a certain threshold level of racial bias,” he wrote. Evans agreed. “The RJA as interpreted by my colleagues has been significantly diluted,” she wrote. Now, “That question doesn’t exist anymore.” Was the word used to address racial prejudice? But instead How much racial prejudice is too much? Such an approach is likely to bring the judicial system into disrepute. ”

The court similarly weakened the RJA’s mandate that “defendants are not subject to the death penalty” after a violation. Instead, the provision applied only to the proceeding in which the violation was committed, and Bankston held that the death penalty would remain eligible upon resentencing. The court also held that its harmless negligence standard applies to death sentences, so the court can: support Death penalty if the violation of the RJA was harmless beyond a reasonable doubt. This effectively adds a third step between finding the violation and removing the death entitlement. Now, after a violation is found, the question is whether it was harmless.

The court once again raised “serious constitutional concerns” based on the California ballot initiative. At issue this time was the 1978 Briggs Initiative, which sets standards for eligibility for the death penalty and cannot be amended by Congress. The court stated that the interpretation of the RJA prohibiting the death penalty on retrial could be considered an unwarranted amendment to this death penalty law. And again, Evans asserted that “the canon of constitutional avoidance does not give us the authority to rewrite this important criminal justice reform law.” She added that “nowhere in the RJA document did it suggest that there was an additional step between Congress’s finding of a violation and its obligation to provide an effective remedy.”

Ultimately, Evans wrote, courts are contorting themselves to avoid “excessive justice.” And in doing so, it continues to do what courts have always done: minimize discrimination and prejudice at every turn to avoid interference with criminal prosecutions. But the RJA was designed to stop that very practice, overcoming the courts’ institutional resistance and mandating any form of intervention whenever racial bias manifests itself. “In other words, the RJA is an order to the court that: change“Congress-mandated changes require courts to proactively recognize racial discrimination when it occurs and provide effective remedies in each case,” Evans wrote.

Kyle C. Barry is executive director of the State Law Research Initiative.