Proving Actionable Racial Disparity Under the California Racial Justice Act

66 Pages Posted: 27 Mar 2023 Last revised: 1 Feb 2024

See all articles by Colleen V. Chien

Colleen V. Chien

UC Berkeley School of Law

W. David Ball

Santa Clara School of Law

William A. Sundstrom

Santa Clara University - Leavey School of Business - Economics Department

Date Written: March 17, 2023

Abstract

Racial disparity is a fact of the US criminal justice system, but under the U.S. Supreme Court’s holding in McCleskey v. Kemp, racial disparities--even sizable, statistically significant disparities--do not establish an Equal Protection violation without a showing of “purposeful discrimination.” The California Racial Justice Act (CRJA), enacted in 2020 and further amended in 2022, introduced a first-of-its kind test for actionable racial disparity even in the absence of a showing of intent, allowing for relief when the “totality of the evidence demonstrates a significant difference” in charging, conviction, or sentencing across racial groups when compared to those who are “similarly situated” and who have engaged in “similar conduct.” Though the CRJA was enacted over two years ago, two obstacles have made its promised remedies exist largely on paper only– confusion about how to apply its new test and a lack of access to the data needed to demonstrate a significant difference. This article attempts to overcome these obstacles by exploring and interpreting the significant difference test and by analyzing a database of disparities that enables controls for criminal history and geography (similarly situated) and overlapping elements (similar conduct) based on comprehensive data from the California Department of Justice. We also present two case studies that demonstrate how defendants might establish an initial showing of significant difference sufficient to successfully move for discovery.

Keywords: racial disparity, equal protection, statistics, empirical, criminal law, civil procedure

JEL Classification: K14, K4

Suggested Citation

Chien, Colleen V. and Ball, W. David and Sundstrom, William A., Proving Actionable Racial Disparity Under the California Racial Justice Act (March 17, 2023). 75 University of California College of the Law Journal 1 (2023) , Available at SSRN: https://ssrn.com/abstract=4392014 or http://dx.doi.org/10.2139/ssrn.4392014

Colleen V. Chien (Contact Author)

UC Berkeley School of Law ( email )

302 JSP
2240 Piedmont Ave
Berkeley, CA 94720
United States
510-664-5254 (Phone)

W. David Ball

Santa Clara School of Law ( email )

500 El Camino Real
Santa Clara, CA 95053
United States

William A. Sundstrom

Santa Clara University - Leavey School of Business - Economics Department ( email )

500 El Camino Real
Santa Clara, CA California 95053
United States
408-554-4341 (Phone)
408-554-2331 (Fax)

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