Abstract

Excerpted From: Emi MacLean, Embracing “Too Much Justice”: Realizing the Potential of the California Racial Justice Act, 29 Berkeley Journal of Criminal Law 89 (2024) (Footnotes) (Full Document)

In the preamble to the Racial Justice Act (RJA), the California Legislature presents the law's bold ambitions: to eradicate racial disparities in the criminal legal system, to provide remedies for those whose proceedings are tainted by racial bias, and to ensure that the public has access to “all relevant evidence” in seeking such remedies. Yet three years after the law's implementation, there are still only a small number of RJA victories in courtrooms across the state. This is not for lack of evidence showing racial disparities in our criminal legal system. Nor is it for lack of trying to highlight, and upend, these disparities. Each court victory has been hard-fought, and has had to overcome resistance from prosecutors and judges, and most of all from an entrenched faith in the criminal legal system.

In the U.S. Supreme Court's notorious 1987 decision McCleskey v. Kemp, the divided Court rejected compelling statistical evidence that Georgia's implementation of the death penalty was racially discriminatory, in violation of the Constitution. Justice Powell's majority opinion noted the risk of accepting that Georgia's application of the death penalty was racially discriminatory:

McCleskey's claim, taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system .... [I]f we accepted McCleskey's claim that racial bias has impermissibly tainted the capital sentencing decision, we could soon be faced with similar claims as to other types of penalty. Moreover, the claim ... could be extended to apply to claims based on unexplained discrepancies that correlate to membership in other minority groups, and even to gender.

Justice Brennan, in dissent, famously recognized this fear for what it was: a “fear of too much justice.” As Justice Brennan wrote, “The prospect that there may be more widespread abuse than McCleskey documents may be dismaying, but it does not justify complete abdication of our judicial role.”

In enacting the RJA, the California Legislature rejected the McCleskey standard. However, effectively implementing the RJA also requires facing Justice Brennan's “fear of too much justice.” The RJA implicates that concern by permitting challenges to racial disparities in charges, convictions, or sentencing. These disparity-based RJA claims pose a particularly potent challenge to systemic injustice. They also present unique challenges that will require collaborative, creative, and strategic litigation. This essay surveys the success of the RJA in its first three years, and identifies challenges and opportunities for the realization of disparity-based RJA claims in particular.

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The potential of the RJA is massive. Each small victory in a courtroom contributes to what should be the unraveling of systemic racism in our criminal legal system. Individual cases demonstrate proof of concept: it is possible to reject the fear of too much justice and to implement the principles that undergird the RJA. The threat of the RJA also can, and should, have a deterrent effect.

We also hope to realize the potential of greater access to, and analyses of, data about racial disparities. Data has the power to demonstrate how individual decisions, made every day in response to or in the absence of policy, combine together to create systemic injustice. The existence, or lack, of prosecutorial policies and training materials also shows what prosecutors care about, how they use their resources, and whether and how they take steps to protect against explicit or implicit biases. Greater prosecutorial transparency allows for effective RJA challenges. The data should also force prosecutors to recognize that certain historic practices require re-evaluation and reform in light of the RJA's mandate.

The RJA's realization depends on ongoing and increased collaboration between those affected by the criminal legal system, those defending people within it, and those trying to make sense of data disparities with analytical skills. Today, the measurable impact of the RJA is still limited. However, the dedicated focus of a diverse array of practitioners on the implementation of this important legislation foreshadows its transformative potential.

Emi MacLean is a Senior Staff Attorney at the ACLU of Northern California.