Published on: Thursday, October 1, 2020

California Gov. Gavin Newsom on Wednesday signed sweeping legislation targeting bias in California courtrooms (article available here). As the nation reckons with the scourge of racial injustice rooted in the legacy of slavery and systemic racism, Governor Newsom signed a first-in-the-nation law to study and make recommendations on reparations for slavery to the Black community through a state-based task force. He also signed two bills targeting structural racism and bias in our legal system by prohibiting the use of race, ethnicity, and national origin to seek or obtain convictions or impose sentences, and to reduce discrimination in jury selection.

Assembly Bill 3070 establishes a presumption that certain reasons for excluding jurors are improper proxys for racial discrimination, and targets implicit or unconscious bias in jury selection—something that the Batson and its progeny did not prohibit. The law takes effect for criminal cases in January 2022.  It’s the first legislative reform of its kind in the country, though it follows a similar rule adopted by the Washington State Supreme Court in 2018.

Another jury reform, Senate Bill 592, will expand California’s pool of prospective jurors by including everyone who files an income tax return. Currently, jurors are primarily drawn from people who are registered to vote or have a driver’s license. This practice disproportionately excludes Black and Latinx residents, as well as people with lower income.

Finally, the California Racial Justice Act (AB 2542) is a sweeping reform that will allow people to challenge convictions and sentences that are based on race. The Racial Justice Act provides a remedy for discrimination on the back end, allowing for post-conviction hearings to present evidence that racial or ethnic animus infected any stage of the prosecution, including “in the exercise of peremptory challenges.” Crucially, this new law permits statistical evidence to show racial disparities in charging and sentencing decisions over time, and allows courts to grant relief where they exist.