New Criminal Law and Policy Focus: the Racial Justice Act

Welcome to this year’s edition of the Criminal Law and Policy Blog, a product of the Criminal Law and Policy Seminar at Santa Clara University School of Law. This year we will be focusing on the Racial Justice Act. As with my past courses on marijuana legalization and bail reform, both of which resulted in statewide policy changes, the goal for this class is for students to produce work that informs practitioners, citizens, and the justice involved (and their families).

The Racial Justice Act (RJA) is a novel California statute that expressly breaks with U.S. Supreme Court precedent to provides remedies for members of racial, religious, national origin (etc.) groups who have been subject to disparate outcomes in the criminal legal system. The US Supreme Court standard, in McCleskey v. Kemp and United States v. Armstrong, for example, is that disparate outcomes violate the constitution only if there is disparate treatment–e.g., that the disparate outcomes are the result of active prejudice. The RJA says significantly different outcomes not explained by race-neutral factors are all a defendant needs to show in order to get relief. (The same is true for other forms of discrimination besides race.) In January of 2024, an expansion bill (AB 256) that provided retroactive relief came into effect for all prisoners currently serving sentences. (For more information about the RJA, please see Proving Actionable Racial Disparity Under the California Racial Justice Act, a paper that I co-wrote with Professors Colleen Chien and William Sundstrom.

Below you’ll find links to student projects. The links are to the “author” pages of each student. If you are interested in reading the posts in order, start at the bottom and work your way up (the installments are posted in conventional blog order–most recent posts at the top, oldest ones at the bottom).

For Incarcerated People to Successfully File RJA Claims, They Must Have Legal Representation, or the Equivalent Level of Assistance

In my previous post I provided two recommendations that could increase the opportunity for incarcerated people to raise successful Racial Justice Act (RJA) claims under the Racial Justice for All Act:

For The California Department of Corrections and Rehabilitation (CDCR) to amend the prison law library regulation, Cal. Code Regs. tit. 15 § 3120 – § 3124, to include a mandated affirmative notice to incarcerated people when new retroactive laws are enacted; and
Creating a Post-Conviction RJA Guide to be distributed to all California detention centers.

While these proposed solutions are helpful, there are still barriers that make it difficult for them to file claims. This post will discuss these barriers that incarcerated people face when attempting to file post-conviction RJA claims without an attorney. It will also present the argument that the most efficient way for the State to comply with the constitutional duty to ensure that incarcerated people receive “adequate, effective and meaningful” access to the courts is to provide them with counsel.

Reasons Why the Proposed Solutions Will Still Have Problems

Let’s assume that California implemented both of my proposed solutions so that the prison law library statute was amended to include the notice requirement and prisons provided incarcerated people with a “How-to-file post-conviction RJA guide.” Being informed that a new law exists is a huge step in the right direction, but, as I previously stated, pro se litigants nonetheless need to understand both the procedural requirements when filing claims and how to utilize online legal databases. Without the baseline understanding of the legal system, including formulating pleadings, obtaining meaningful discovery, preparing motions and briefs, conducting thorough research and ultimately in presenting a case–all necessary means to “access the courts”– knowledge that a new law exists is fruitless, even with a supplemental guide.

The most recent notable CDCR amendment related to the content of prison law libraries was in 2021, which replaced hard copies of books with the Law Library Electronic Delivery System (LLEDS). In the statement of reasons for amending the regulation, it states that, “by providing legal materials in an electronic format it allows for a more efficient means for inmates to access legal information. The information is readily available, current and up-to-date, can be accessed and sorted quickly, and multiple users may access at any one time.” However, the Department accepted public comments before the amendment was approved, which revealed opposition and hostility towards the CDCR, including:

Difficulty finding the necessary legal materials on LLEDS
Unresponsive law librarians who are untrained in the law
The incompatibility of the LLEDS digital format with the word processing program necessary to complete certain forms
Old, slow law library computers
The ratio of computers to incarcerated people– one commenter said there were only five kiosks/computer monitors for a yard of over 1,100 people
Lack of digital literacy or skills required for the use of electronic devices and the need for a functional prison-wide digital literacy program
Unfamiliarity with court deadlines
Limited research time made available to incarcerated people
The delay in communicating with law library staff or outside persons; it might take weeks or months to receive an answer to a simple question

One comment even said, “[The proposed amendment]…removes important digests, to be replaced by Federal Court Reporters. This is like removing the Merck Manual of medical information from a library and leaving the medical layperson only a list of diseases.”

In short, when the CDCR moved to an almost entirely online library system (LLEDS), it introduced a new category of problems for incarcerated people trying to access legal materials: digital literacy. Digital literacy is defined by the U.S Code as “the skills associated with using technology to enable users to find, evaluate, organize, create, and communicate information.” As discussed in my second post, although incarcerated people are not necessarily ill-equipped to learn how to conduct legal research and file petitions, there are factors that make the process extremely challenging, including the complexity of the cases, educational background, language barriers and cognitive abilities. The implementation of the LLEDS system adds another barrier one must overcome in order to file a post-conviction RJA claim.

When you add these institutional issues with the internal barriers that incarcerated people confront like literacy, language and education, it seems impracticable for them to file a successful post-conviction RJA motion, on their own.

The Problem With Pro Se Representation for RJA Claims

Because the RJA is so new, experienced lawyers and judges are still in the process of figuring out how to apply it. Additionally, because the average incarcerated person in the California prison system reads at an eighth grade level, there is a high risk of pro se litigants filing frivolous, or even incomprehensible claims.

As previously discussed, the 1972 “Prison Legal Libraries: Idea into Reality” conference at UC Berkeley confronted the issue of what legal research materials should be provided to incarcerated people and concluded that no individual should be without recourse to the courts and to the law. William Bennett Turner, attorney for the NAACP Legal Defense and Education Fund, brought his legal perspective to the conference. He argued that lawyers are not interchangeable with law books and stated, “ …What’s required is legal services, not law books. This means legal services of the kind where you sit down with a prisoner and you get his story and you advise him, counsel him and figure out whether he has a claim in the first place.” In short, the law is complicated, and as much as “jailhouse lawyers” are incredibly competent, lawyers are most effective to help the average incarcerated person with their claims.

With those concerns in mind, if incarcerated people are left to file RJA claims on their own, there is a risk the courts will receive petitions that are difficult to understand, outright incomprehensible, and/or legally frivolous. Of course this isn’t to say for certain, but based on my research I’d say it’s a well-informed prediction. This would be a burden on the courts while also being harmful for the incarcerated person who might devote a lot of time drafting a petition when, if they had ten minutes with an attorney at the beginning of the endeavor, could have told them it was useless.

Additionally, because the RJA is now applied retroactively, there is concern that the “floodgates” will open, and the courts will be bogged down with thousands of RJA claims. A 2018 report by the California Legislature’s Policy Advisor estimated that Black and Hispanic males comprise 72% of the prison population, which at the time was about 127,000. Without knowing the exact number of valid RJA claims that could exist but when looking at the sentencing disparities of Black and Hispanic males alone–who make-up 72% of the State prison population and only 42% of the State population– it’s safe to say there is potential for thousands of RJA claims. Moreover, given that incarcerated people are not entitled to legal representation after they have exhausted their constitutionally required appeals, this means that the vast majority of those thousands of potential RJA claims will be coming from pro se litigants.

Incarcerated People Should be Provided an Attorney for RJA Claims

In the 1963 landmark case of Gideon v. Wainwright, the United States Supreme Court guaranteed the right to legal counsel for criminal defendants in federal and state courts. The Court has further held that a criminal defendant’s Sixth Amendment right to assistance of counsel extends to their first appeal after conviction, meaning that if a person has been convicted of a crime, they have a right to a free lawyer on appeal. As stated above, after the appeal is over, an incarcerated person no longer has the right to an attorney. This leaves a huge gap in the legal system, because there are still a number of rights that could be raised after the appeal process has completed, for example, a writ of habeas corpus.

We now arrive at this place where there are potentially thousands of incarcerated people who were convicted or sentenced based on racial bias/animus, who no longer have the right to an attorney, have absolutely no idea how to proceed in filing a motion, and have no idea whether their claim is even valid.

In 1971, Julius J. Marke, the law librarian at New York University School of Law, discussed the American Association for Law Libraries (AALL) concern on incarcerated people’s access to the courts and prison law library content. He said, “I think what we should attempt to determine is how we can help them obtain legal services, rather than making a survey for the purpose of determining how meager the resources are. We know they are meager. I do not think we have to make a study to determine how bad the situation is; it is horrible. We all know that, but how do you improve it?”

This issue was addressed in a 1970 California case, Gilmore v. People of the State of California, where a group of incarcerated people filed an action for injunctive relief against a prison regulation limiting the numbers of law books and legal opinions which an individual could have in his personal possession. The regulation also limited the number of law books and legal reference works that could be on hand in the prison library to eleven named law books. There were no annotated codes, no federal codes, no federal rules for the federal district court, and no case reports. In the opinion, Judge Zirpoli, of the Northern District of California, noted, “These works would offer meager fare to a criminal lawyer… I would hate to draw up a petition of any kind using that library. I could be sued for malpractice twenty times over.”

The State appealed to the U.S Supreme Court, who ultimately affirmed the District Court’s decision. They mandated that the State of California rescind this limited law book regulation and provide new law books and new regulations. The Court further suggested a number of ways in which the prisons could meet the needs of incarcerated people and ensure they have meaningful access to the courts. In regards to law library books, the high court noted that books are one means, but if there are books there must also be training to use those books. They also noted that counsel is another way to meet their needs and suggested that the State could require every attorney, as a prerequisite to being allowed to practice law, to give a number of hours to a pro bono cause, including prison cases. They also suggested that the State implement some kind of system where law students could be required to go to the prisons and counsel and interview incarcerated people.

Conclusion

There is little evidence that the prison law libraries have improved their resources since the 1970’s to assist incarcerated people in conducting legal research and ultimately guarantee their constitutional right to access the courts. The evidence demonstrates that how-to guides and other supplemental resources are helpful, but not good enough. This means the most effective way for the State to comply with their constitutional duty to ensure that incarcerated people receive “adequate, effective and meaningful” access to the courts, is to provide them with counsel for RJA claims. Making continued legal representation a right will help assuage concerns around pro se litigants and will be a start in helping them file successful RJA claims.

Equal Protection of the laws is an essential if you’re going to deprive an individual of life, liberty or property. It also commands that you don’t do this unless you give an individual Due Process of Law, and Due Process of Law includes access to the courts. It’s not a privilege for an incarcerated person to challenge the legality of their imprisonment based on an RJA violation, it’s a right.

What is To Be Done: Closing the Gaps of Racial Bias that the CRJA Cannot Address

In my previous post, I proposed an amendment to the California Racial Justice Act (CRJA) that establishes a conclusive presumption of racial bias based on a law enforcement officer’s active participation in a racial supremacist group. In this blog post, I will evaluate whether a racist text group chat made up of Antioch law enforcement officers constitutes a racial supremacist group within the meaning of that presumption. Then, I will discuss the sources of racial bias in the California justice system that will persist regardless of the CRJA and my proposed amendment to it. Finally, I will trace the intersection of law enforcement and racial supremacy to its source and propose a path forward to truly eliminating racial bias from the criminal justice system in its entirety.

Recently, the Antioch Police Department reinstated Sergeant Rick Hoffman after the Department had previously placed Hoffman on paid leave for his participation in a racist text group chat operated by at least 45 Antioch police officers. It is unclear why the Antioch Police Department decided to reinstate Sergeant Hoffman. In an interview with ABC 7, Antioch Police Commissioner Devin Williams questioned the decision, “They are back on the force, so were there no findings in this investigation? Why hasn’t there been any disclosure on that? Why hasn’t the public been made aware? It felt like a secret.” Absent any demonstration that Sergeant Hoffman was wrongfully placed on leave or otherwise had a change of character rendering him fit to protect and serve, this reinstatement serves as an example of how existing measures, including the California Racial Justice Act, are not equipped to deal with law enforcement officers who participate in racial supremacist groups. For that reason, it is worth examining whether the law enforcement officers who participated in a racist text group chat in Antioch are implicated by my proposed conclusive presumption.

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ReLearning On an Individual and Organizational Level

The final and most important step of the unlearning process is the relearning phase. This phase involves learning new things while doing something new (eg. a new routine). The relearning phase helps solidify the new information and ensure its longevity. This post will address how relearning can happen at an individual level through addressing implicit bias. Further, this post will discuss how relearning can occur on an organizational level with the institution of new race-blind charging policies.

As it relates to the Racial Justice Act, the relearning phase needs to focus on understanding the drastic shifts in the criminal justice system that have been made through the RJA. As discussed in my previous post, tracking and storing charging data by racial group is now more important than ever. This data can serve as a progress check on individual prosecutors and the office on their efforts to address racial disparities in charging decisions.

To effectively relearn how to charge people considering the RJA on an individual level prosecutors need to address the influence implicit bias and prejudice have in their decision-making process. One of the critical aspects of the unlearning process is understanding how one thinks and why something they used to believe now needs to change. Addressing one’s implicit biases can help curb decades of inequities that have been ingrained in the criminal justice system for generations.

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Creating Solutions to the Objective Observer Issue

In my previous post, I discussed why using social science and other objective standards in our criminal justice system makes it difficult for attorneys to argue that language is racially discriminatory. The Racial Justice Act’s (RJA) goal to prevent racially discriminatory language in criminal proceedings is not being met. Therefore, in order to keep racially discriminatory language outside of the courtroom, the RJA’s objective observer standard must be amended, supplemented, or entirely changed.

In this post, I will propose an amendment that simply adds one word to the objective observer standard and includes a provision to further explain that standard. I will also discuss how attorneys and judges would greatly benefit from a non-exhaustive list of racially discriminatory epithets to assist them in identifying such language. Finally, I will propose an ideal solution to the RJA–eliminating the standard of “objective” observer altogether and replacing it with the “reasonable under the circumstance” standard. The latter is more of a hybrid standard, which approaches circumstances from both a subjective and an objective lens. Using a hybrid standard would better accommodate courts in their understanding of what qualifies as racially discriminatory language.

The first step in resolving the objective observer issue is to amend the language of the provision by simply adding one word: educated. The current language of the statute does not accurately reflect the intent behind the provision. If the criminal justice system is going to be consistently finding RJA claims under (a)(2), then there must be a consistent understanding. Adding the word “educated” before “objective observer” is going to drastically change the understanding and interpretation of the statute.

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Messaging Matters: Mitigating System Justifying Motivations and Breaking Down Barriers to Racial Justice

In my previous post, I presented System Justification Theory (SJT) as an explanation for the apparent resistance to the RJA in California’s criminal legal system. Because the RJA outwardly criticizes the current system, and because we’re all in some way beholden to it, the RJA could be considered a threat to the status quo, resulting in heightened motivation to defend and maintain the current system. I theorized this is why we see “creeping McCleskeyism” throughout recent RJA decisions.

Insofar as SJT has provided an explanation for difficulties in any systemic change, it also provides insight about how to effectuate necessary systemic changes. This final post will examine various change situations through the lens of SJT, and in particular, what helps lessen the motivation to maintain the status quo. I will then discuss how the RJA has, from its inception, been set up to overcome this resistance. Finally, I will present additional solutions that could ensure the long-term success of the RJA.

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Guiding the Gavel: Bringing the Standard to Life

In my previous posts, I described what a “Pitchess motion” is (a method by which defendants can unearth complaints against police officers that may be relevant to their case, upon a showing of good cause). I also described how a judge determines the relevance of a complaint against an officer, through a process known as “in-camera review” (in which a judge reviews complaints against an officer and decides whether or not they are relevant to the defendant’s case). I identified the problems of that process: judges conduct in-camera review alone in their chambers, with little to no supervision or guidance. As such, their decisions are based almost entirely on their own discretion, which leads to very inconsistent outcomes or even abuses of discretion. Next, I identified the nexus between Pitchess motions, in-camera review, and the Racial Justice Act (RJA), which is a relatively recent addition to California law that allows defendants to obtain a remedy in their case if they experience racial bias or animus in a variety of ways both inside or outside the courtroom. The nexus is that complaints against law enforcement officers can include allegations of racism or biased behavior, and learning about this behavior could provide crucial evidence in establishing a Racial Justice Act (RJA) violation.

To mitigate the problems with unchecked discretion during this process, I proposed a new judicial standard, modeled after existing judicial standards. The in-camera review standard details how judges should conduct such reviews, and information they should take into account when making their decision. Further, the In-Camera review standard included elements of systemic change, such as the introduction of committees to advise the judiciary on identifying implicit bias within themselves and within the police departments whose complaints they review.

Now, I will describe the process by which an In-Camera review standard could become an established policy, the obstacles it might face, and possible solutions and arguments that could help overcome such obstacles.

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Becoming Aware of the New and Relinquishing the Old Rules After the RJA

Considering the radical changes to the criminal justice system in the Racial Justice Act, everyone involved in the system must unlearn their old practices and relearn the new law. As discussed in my previous post , the principles of unlearning can serve as a guide for how people can properly dispense of the old information they were holding on to. This series focuses on how prosecutors can apply these strategies to their work.

For prosecutors to implement the law properly they will need guidance and training on the changes created because of the RJA, such as the new need for data and the overruling of existing case law. As such, following the principles of unlearning will allow them to have a deeper understanding of how the RJA has impacted their work. Using these principles as a guide, prosecutor’s offices across the state will be able to effectively educate their deputies on what needs to be done to comply with the RJA and support its goals. This post will concentrate on how prosecutor’s offices can become aware of what they need to relinquish in the process of unlearning in light of the RJA.

Awareness

The first step in the unlearning process is awareness, which is the process by which someone becomes enlightened to the fact that something in their old pattern of behavior is now outdated. For prosecutors to unlearn their old ways and fully embrace the requirements set in the RJA, they must be aware of the RJA and understand its goal, what aspects of their job must now change as a result, and concerns raised by opposing sides. In this post, I will focus on the use of data in RJA claims.

Under the RJA, a defendant is now entitled to relief if they can show that there were disparities between how members of their racial group were charged or convicted compared to other similarly situated people of a different racial group. To determine who is similarly situated, the RJA allows defendants to provide evidence if the defendant was charged or convicted “of a more serious offense than defendants of other races, ethnicities, or national origins who committed similar offenses.” Overall, the goal of the RJA is to address the presence of racial bias in the criminal justice system and provide opportunities for defendants to seek relief. This is a massive change.

In McCleskey v. Kemp[WDB1] , statistical evidence was presented to the jury that Defendants in Georgia were more than four times as likely to be sentenced to death if the murder victim was white. Despite this clear disparity, the U.S. Supreme Court held that defendants in criminal cases had to prove “intentional discrimination” when challenging their sentences. Justice Powell’s majority opinion stated that racial disparities are inevitable in the criminal justice system. The author of the Racial Justice Act, California State Assemblymember and former public defender Ash Kalra, stated that the law is “a countermeasure to the widely condemned 1987 legal precedent established in the case of McCleskey v. Kemp.” Kalra further argued that the McCleskey standard was an “unreasonably high standard for victims of racism in the criminal legal system that is almost impossible to meet without direct proof that the racially discriminatory behavior was conscious, deliberate and targeted .” Courts followed this idea for decades, so changing this precedent is a significant change to the status quo. With the implementation of the new rules requiring data-driven analysis on similarly situated individuals, the rule in McCleskey v. Kemp has been effectively overturned in California and must be unlearned.

Relinquishing

This type of thinking must now be unlearned. Prior to the RJA, there was no avenue for a person to get relief if they could demonstrate racial disparities in their charge or their conviction. Now, it is an integral piece. Thus, it is critical that prosecutors are trained under the new model of using data to inform their decisions. They must fully understand how data is incorporated into their practice now and the old theory of racial disparities being inevitable is no longer a justification.

With this new understanding of how data can be used, one of the key changes that prosecutors will have to make is that they will have to collect data in a new way and be prepared to use it differently. For the RJA to be effectively implemented, prosecutor’s offices must keep and track data on charges and convictions categorized by racial groups as defendants must show racial disparities in charges and convictions for a RJA claim under Section (a)(3) and (a)(4). Currently, 78% of Superior Courts and 81% of DA offices collect some data on the race of an accused person. However, for example, neither Glenn County nor Sacramento County reported collecting any data on the race of accused people. If an office does not collect data on the race of an accused individual, the ability of a defendant to bring a claim under the last two prongs will be significantly hampered, as would a prosecutor’s office’s ability to defend against such a claim. Further, such data will need to be organized in an easily accessible and readable way. While 98% of reporting agencies maintain a case management system, there will be challenges in obtaining the records expeditiously if the records are not digital or are collected in hard copy. Additionally, some records related to the trial results and charges are kept with the court files and not always in the prosecutor’s office.

Prior to the RJA, prosecutors did not need to have this data as readily available. There was no method for a defendant seeking relief to rely on it, as demonstrated by McCleskey. As such, even the process of having to store this information is a novel practice. In the 2023-2024 session, AB 2065 was introduced to require the disclosure of specified arrest records and data reports to a licensed attorney that submits a request for this information for an RJA claim. Further the new legislation would require the Judicial Council to include additional data on racial disparities in their annual report to the legislature and make it available to the public.

Given these changes, prosecutors’ offices must change their practices when it comes to using this data. Not only must they keep track of the race of accused and convicted individuals, but they must also understand how to use this data to inform their decision-making when it comes to the charges they pursue. The RJA now allows a defendant to obtain relief if they can show racial bias based on a racially discriminatory pattern of charges or convictions in the county. Therefore, prosecutors need to be aware if they are making those mistakes, whether implicitly or not, and address because that is happening. This would most likely require prosecutors to routinely update themselves on the charging and conviction statistics of their county, as well as research whether race-neutral reasons exist for any disparities. That way, when an RJA claim is raised against a prosecutor’s office, a deputy will be prepared to respond effectively.

What would this look like in practice?

In a 2018 study, researchers interviewed several nurses in a maternity ward who had implemented unlearning strategies beginning in the 1990s. Until the mid-1990s, after childbirth, mothers would go home while their babies remained under the supervision of doctors. The practice slowly began to shift for most newborns, but sick newborns were still required to remain in the hospital for an extended time. As one of the nurses interviewed for this study stated “my heart told me things were wrong” with the fact that the sick newborns had to stay in the hospital for long periods without their mother. Therefore, by 2005, the policies were shifted to allow all but the most ill babies to go home with their mothers. Nurses and doctors were also pushed to do more at-home care instead of long hospital stays. The nurses noted that this change required unlearning their old practice and learning about the benefits of sending the babies home sooner. Prosecutors will have to do something similar with data.

The unlearning process of changing this policy occurred over a period of 10 to 20 years. Many of the ideas they considered came from other countries. The nurses then took time to collect their shared new thoughts before presenting them to management to be incorporated. An overall cultural shift in the hospital was required. The nurses had to encourage their patients to take their care into their own hands and become more engaged in the process. Second, the nurses also began to take a more active role in communicating their patient’s needs to their doctor and hospital management. These changes were gradual but were born out of deep shifts in the hospital culture. This case study can serve as an example of successful learning strategies in practice and serve as a guide for implementation of the principles of the RJA into the prosecutor’s office.

Prosecutors must begin on their own to incorporate this data into their practice. As the study showed, a lot of the unlearning must be done on the individual level. Each individual prosecutor can use the collected data to ensure they are charging fairly. Individual prosecutors have immense power in charging decisions so starting at the personal level would make a very significant difference. Furthermore, the supervisors could also incorporate the results of the data into their internal guidelines.

Finally, there needs to be a cultural shift in the office. As demonstrated by the nurses, unlearning is only possible if there is a change in the organization itself and the problems with the old ways are openly discussed. This can include office-wide trainings on implicit bias, on racially discriminatory language, and the history of racial disparities in the criminal justice system. Prosecutor’s offices can also compile and publicly release their own charging data to the public so they can be held accountable by their community to uphold the RJA’s principles.

Further this shift can include creating new policies that are in line with the RJA for charging and sentencing recommendations. For example, office leadership should also be keeping track of the charging data and checking it regularly and see if there are outliers who are over charging along racial lines. With that information, office leadership can then foster an environment where they can openly engage with individual prosecutors and ensure they are making the appropriate charging decisions going forward. By making those conversations a regular part of a prosecutors evaluation with their supervisor, the topic can become normalized.

My next post will address how the finals phase of the theory of unlearning, relearning, can be implemented on both the individual prosecutor and on a state-wide level.

Incarcerated People are Being Denied the Legal Resources They’re Entitled to Access the Courts

In my previous post, I talked about the Prison Law Library Doctrine as a means of “adequate, effective and meaningful” access to the courts. Bounds emphasized that prison law libraries are not necessary to achieve meaningful access to the courts, but they may be sufficient depending on their content and resources. In California, the prison law library has become the most frequently employed means of supplying such access. The State even goes as far as specifically including an incarcerated person (IP)’s access to the courts in the California Department of Corrections and Rehabilitation (CDCR) regulation that governs the content and resources available in the prison law library. Cal. Code Regs. Tit. 15, § 3122 provides that all IP’s shall be entitled to physical law library access that is sufficient to provide meaningful access to the courts. But despite the CDCR regulation explicitly providing that prison law libraries shall be sufficient to provide meaningful access to the courts, they are still impracticable.

The content and resources in prison law libraries are insufficient and there is no evidence the State has implemented any form of alternative means to supplement the lack of support. Without sufficient law libraries, it is inconceivable to think that IP are equipped to identify the central issues and present evidence and arguments regarding those issues in their case.

This post will discuss specific recommendations to improve the conditions within the California Prison Law Library System. It will also address how those changes will increase the opportunity for IP to raise retroactive Racial Justice Act (RJA) claims under the Racial Justice for All Act, and ultimately provide a clearer and sufficient path to access the courts. Specifically, I will provide (i) a solution that guarantees all IP are aware of new retroactive laws that are passed, and (ii) a method to help IP file habeas corpus petitions based on RJA violations.

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Finding a Clear Objective Standard Through Social Sciences and Other Objective Standards in Law.

As discussed in my previous post, section 745 (a)(2) of the Racial Justice Act (RJA) prevents the use of racially discriminatory language in the courtroom; however, the current state of the “objective observer” standard makes it nearly impossible to identify such language and apply the standard consistently. There are too many differences in education, age, and political beliefs between citizens in California making this standard unworkable. In this post, I am going to identify social science research and other “objective” standards in criminal law to attempt to implement the “objective observer” standard in the courtroom.

Social science research may be a good starting place for attorneys attempting to determine who an “objective observer” might be. An article called Theory of Mind & Darwin’s Legacy by John R. Searle, from the University of California, Berkeley, explores the concepts of objectivity, subjectivity, and observer reality. Searle states that objectivity that requires knowledgeable input cannot be done without a level of subjective input, which is antithetical to the current “objective observer” application. In other words, there can be no objective opinion without also applying a type of subjective standard. This is an issue because the RJA is not equipped to use a subjective standard because it determines what is racially discriminatory through the lens of an objective observer.

The author makes a distinction between objective fact and subjective opinion. For example, he states that while saying van Gogh died in France is epistemically objective (an objective fact), saying that Van Gogh was a better painter than Paul Gauguin is a matter of subjective opinion. As discussed previously, language is going to fall into the category of subjective opinion. This is because language interpretation depends on the one who is hearing. Since language falls into the category of subjective opinion, it makes it difficult to apply an objective standard as required by the RJA.

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A World Without Pretextual Stops: Examples and Recommendations for the Future of Policing Under the RJA

As discussed in my last post, the RJA effectively overrules Whren v. United States and prohibits the use of pretextual stops by police. Pretextual stops are those where a police officer pulls over a driver based on an objectively reasonable purpose, but is motivated by the desire to look for evidence of another, more serious crime, and the existence of implicit biases and racial disparities in the occurrence of traffic stops makes these stops a violation of the RJA.

If it is the case that the RJA prevents police officers from conducting pretext stops, the question then becomes “now what?” Is this the end of traffic stops altogether? In this, my third and final post in my series on the RJA’s effect on pretextual traffic stops, I will examine legislative and policy efforts that have been made to limit or prohibit the use of pretextual stops. I will then discuss some possible strategies that cities and police departments have taken concerning the use of pretextual stops, as well as my recommendations for policymakers moving forward.

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