Addressing Racial Bias in California Courts

Jury Selection

A report from Berkeley Law’s Death Penalty Clinics has reviewed racial discrimination as “a consistent aspect of jury selection in California.” The investigation covers the history, legacy, and ongoing practice of jury selection processes in the state that exclude people of color, especially African Americans, through what are known as peremptory challenges on the part of the prosecutor. Peremptory challenges are used by attorneys to excuse potential jurors during jury selection without having to provide a reason.

The study involved an evaluation of 683 California Courts of Appeal cases that involved objections to the peremptory challenges from 2006 to 2018. They found that “prosecutors used their strikes to remove African-American jurors in nearly 75 percent of these cases, Latinx jurors in about 28 percent, and white jurors in only three cases (0.4 percent).”

The author of the report, along with five of her students, was Death Penalty Clinic Director Professor Elisabeth Semel. She was driven to launch the study by the Washington Supreme Court’s adoption of General Rule 37 in 2018 that “upends a 40-year-old procedure that has altogether failed to reduce, much less eliminate, the disproportionate exclusion of African-American and Latinx prospective jurors.”

Semel adds, “I was encouraged by the court’s leadership to believe that a careful and thorough investigation of the issue in California could produce meaningful reform.” Assembly Bill 3070, which the State Assembly approved by a 50-11 vote on June 11, is modeled on the Washington rule. One of Semel’s students, Dagen Downard, commented that “AB 3070 is one necessary step in eliminating racial discrimination in one part of the machine.”

California Attorneys for Criminal Justice

The pre-eminent statewide association of criminal defense attorneys in California, the California Attorneys for Criminal Justice (CACJ), announced a package of legislative proposals designed for addressing racial bias in California courts and in law enforcement. CACJ, founded more than 45 years ago, has as its goal to increase oversight of law enforcement practices and to establish stronger accountability when there are allegations of police abuse.

CACJ’s proposed California Law Enforcement Accountability and Community Justice Act of 2020 is designed for addressing racial bias in California courts, specifically many of the racially biased flaws in the state’s criminal justice system that result in the overincarceration of people of color.

California Justice Commission

The signature proposal in CACJ’s package is the creation of an independent California Justice Commission that will be empowered to make criminal charging decisions in response to allegations of police abuse. The Justice Commission will have the authority to investigate, bring charges, and prosecute cases involving police abuse in any jurisdiction in California.

California Law Enforcement Accountability and Community Justice Act

The Act includes the following:

1. Establish the California Justice Commission. This independent entity has the authority to investigate, bring charges, and prosecute cases involving police abuse in any jurisdiction in California. The Commission is led by a board comprised of diverse individuals who will oversee charging decisions. Local entities will also have the option to create their own independent office that conforms with specified requirements.

2. Expand Civilian Review Board authority. All civilian review boards in California will have the authority to conduct investigations, subpoena witnesses and information, and bring administrative actions against individual law enforcement officers.

3. Create the Law Enforcement Responsibility Act. New criminal statute for police who fail to intervene when another officer is committing a serious or violent felony in their presence. The punishment would be similar to “aiding and abetting.” In addition, strengthen California Civil Rights statutes to permit victims of police abuse to sue individual police officers and departments, even if the individual was charged with a crime. Police officers often assert charges such as “resisting arrest” to negate the ability to sue.

4. Body Camera Expansion. Increase use of body cameras in California and strengthen transparency and public access to the recordings.

5. Bias in Jury Selection. Strengthen current law prohibiting prosecutors from unjustly eliminating people of color from juries. This language is in the Assembly Bill 3070.

6. Restore Voting Rights. Restore voting rights to individuals serving parole.

Orange County Criminal Defense Attorney

Attorney Ronald G. Brower has a long history of achieving successful outcomes for his clients. Please contact our office today to learn more about how he can advocate for a you or a loved one in court.