California: The Blank State
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A new California law declares that disparate racial impact in sentencing rates of convicts, regardless of the felon’s individual criminal history, is prima facie proof of systemic racism and justification for a reduced sentence for black criminals. From City Journal:

California’s Looming Crime Catastrophe

Heather Mac Donald
Recent legislation makes it easier for felons to claim racial bias—potentially putting them back on the streets in large numbers.

Spring 2024

… California is about to demonstrate what a world constructed from the tenets of critical race studies looks like. The sentencing reversal in California v. Windom is the result of a recent law that will likely bring the state’s criminal-justice system to its knees. The Racial Justice Act, passed in 2020 without meaningful public review, turns long-standing academic tropes about implicit bias and white privilege into potent legal tools. And the floodgates are about to open. Starting this year, the RJA allows anyone serving time in a California prison or jail for a felony to challenge his conviction and sentencing retroactively on the ground of systemic racial bias.

The Racial Justice Act operationalizes the proposition that every aspect of the criminal-justice system is biased against blacks. But according to the act’s legislative authors, it’s too hard to prove such bias in the case of individual arrests and prosecutions. Therefore, the act does away with the concept of individual fault and individual proof. From now on, statistics about past convictions are sufficient to invalidate a present trial or sentence.

The RJA explicitly repudiates a key Supreme Court precedent that had governed bias challenges in criminal trials. The plaintiff in McCleskey v. Kemp (1987), Warren McCleskey, a black man, was facing the death penalty for murdering a white police officer in Fulton County, Georgia. McCleskey presented a study purportedly showing that killers of all races in Georgia were more likely to be sentenced to death if their victim was white. Blacks who killed whites were at greatest risk of capital punishment. That alleged historical disparity in sentencing invalidated his own death sentence, argued McCleskey. The Court, in a 5–4 decision, disagreed.

Defendants must show that criminal-justice decision-makers were purposefully biased against them, in order to throw out a conviction or a sentence under the Equal Protection clause of the Fourteenth Amendment, the Court ruled. Statistics purporting to show a historical pattern of bias are not enough to support the requisite showing of individual discriminatory purpose against a particular defendant.

Thanks to the RJA, McCleskey no longer governs bias challenges in California. From now on in California, statistics purporting to show a pattern of bias in the past are enough to invalidate a current arrest, criminal charge, or judicial sentence.

And what statistics they are! The Antioch Racial Justice Act case, California v. Windom, exemplifies the analyses that pass muster under the act. Through discovery requests to the district attorney’s office, defense counsel assembled a database of 89 defendants who had been charged with gang murder in Contra Costa County from 2015 to 2022. Forty-eight of those defendants were black. There were 41 defendants in the comparison pool, made up of any nonblack race the defendants could get their hands on, since white gang-murder defendants in Contra Costa County were virtually nonexistent. Sixty-two percent of the black gang murderers (30) got a sentence of life without parole because of the egregiousness of their killings. It was that so-called LWOP sentence that the four defendants in Windom were challenging. A little over 53 percent of the nonblack gang murderers (24) got a sentence of life without parole. The defense expert, University of California–Irvine criminologist Richard McCleary, used fancy statistical footwork to massage those small differences in an already-small sample size into larger significance. That was the least of the analysis’s problems, however. The real deficiency was that McCleary discarded the rule of comparing like with like. He made no effort to determine the criminal histories of the defendants in the various comparison pools to see if those defendants really were similarly situated. He made no effort to determine how heinous were the murders committed by members of the various comparison pools.

But charging and sentencing always take a defendant’s particular history and the details of his crime into account. Two defendants can both be charged under an aggravated assault statute, but if one defendant has 11 prior convictions for attempted murder, robbery, and carjacking, say, while the second defendant has never been arrested before, a prosecutor will seek different sentences in their two cases. Likewise, two defendants can both be charged with murder, but if one killing involves a higher number of what are known as special circumstances, their sentences will reflect those differences. (Special circumstances include killing a witness, ambush, or torture; they go into the determination of life-without-parole sentences.)

McCleary needed to show that the 17 nonblack defendants in the comparison pool who did not receive a life-without-parole sentence had similar criminal histories or had committed murders of equal egregiousness to the 30 black defendants who did receive life-without-parole sentences. Had he shown such similarities, the argument that race explained their different sentences would be plausible. But McCleary did not even try to look at criminal records or the severity of the murders. The judge, however, was willing to accept the unproved assumption that all the gang-murder defendants in the comparison pools engaged in similar conduct and had similar histories. He would not accept the proposition, he wrote, that “Black defendants charged with gang murder [have], on average, worse criminal records than non-Black defendants, committed the crimes in crueler fashion, or committed more provable crimes,” absent evidence to the contrary. The Contra Costa County district attorney did not provide such evidence, having not even attempted the labor-intensive analysis of the data that would have been necessary.

After the judge had ruled in California v. Windom, a Contra Costa prosecutor commissioned his own study of the data. It turned out that the black gang members in the life-without-parole pool had committed more heinous murders than the nonblack gang members, as measured by the special circumstances in their cases. Once that difference was considered, there was no racial difference in the likelihood that a defendant would get life without parole. The district attorney’s office chose not to publicize the study and has not made it publicly available.

And now, based on a statistically inadequate analysis, not only are the four defendants in Windom entitled to resentencing, but all 30 black gang convicts in the historical pool who had received life without parole can now sue to reopen their sentences, thanks to the RJA’s retroactivity provision. How could criminal history, so central to the practice of criminal law, be deemed irrelevant to Racial Justice Act comparisons? Because the RJA is based not on real-world facts but on academic conceits about a totalizing system of white supremacy. The act establishes an infinite regress of bias from which no escape is possible. If a prosecutor tries to offer what the act calls “race-neutral reasons” (such as criminal history) for either past prosecutions or the current one, those reasons can be challenged, in the words of the statute, as the product of “systemic and institutional racial bias, racial profiling, and historical patterns of racially biased policing and prosecution.”

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