THE DISPARITY IN LITIGATING RACIAL DISPARITY CLAIMS: THE NEED FOR CALIFORNIA COURTS TO ARTICULATE A FRAMEWORK FOR ASSESSING RACIAL JUSTICE ACT CHALLENGES TO CHARGING, CONVICTION, AND SENTENCING

Under California’s Racial Justice Act (RJA)—codified in Penal Code section 745—the state may not seek or obtain a criminal conviction or sentence on the basis of race, ethnicity, or national origin. There are four pathways to establishing an RJA violation. Two of the pathways proscribe discriminatory or biased conduct or language inside or outside the courtroom by specified criminal legal system actors, including judges, attorneys, law enforcement officers, and expert witnesses. The other two are based on disparities in charging, conviction, or sentencing associated with defendant race, ethnicity, or national origin and alternatively, in the case of sentencing, that of the victim. This article focuses primarily the application of Penal Code section 745, subdivision (a)(3), which addresses racial disparities in charging. In creating this portion of the RJA, the legislature expressly intended to lessen the exacting burden the United States Supreme Court set out in McCleskey v. Kemp for proving such claims. The article surveys litigation of disparity claims in some early cases to demonstrate how both trial and appellate courts have inconsistently interpreted subdivision (a)(3) and in many cases applied it in a manner that essentially reinstitutes the virtually unattainable McCleskey standard.