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.

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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is the process by which someone becomes enlightened to the fact that something in their old pattern of behavior is now outdated.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.