Heather Mac Donald warns felons will use California's 'systemic bias' defense to avoid accountability

Convicted felons may soon be pouring out of prison and onto California's already crime-ridden streets thanks to a law ratified in September 2020 by Democratic Gov. Gavin Newsom.

Manhattan Institute fellow and essayist Heather Mac Donald noted in the Wall Street Journal Monday that because of AB 2542, the so-called California Racial Justice Act, "every felon serving time in the state's prisons and jails can now retroactively challenge his conviction and sentencing on the ground of systemic bias."

"To prevail, the incarcerated prisoner need not show that the police officers, prosecutors, judge or jurors in his case were motivated by racism or that his proceedings were unfair," wrote Mac Donald. "If he can demonstrate that in the past, criminal suspects of his race were arrested, prosecuted or sentenced more often or more severely than members of other racial groups, he will be entitled to a new trial or sentence."

Around the time of its ratification, Newsom suggested that Democratic Assemblyman Ash Kalra's AB 2542 demonstrated that California "is dedicated to leading the nation on confronting and addressing systemic injustice."

The governor's office noted further that AB 2542 was a "countermeasure to address a widely condemned 1987 legal precedent established by the U.S. Supreme Court in the case of McCleskey v. Kemp."

Leftists apparently regard the precedent set in McCleskey as problematic because it "has the functional effect of requiring that criminal defendants prove intentional discrimination when challenging racial bias in their legal process."

The need to cite actual proof, according to the governor's office, amounts to "a high standard ... almost impossible to meet."

California's 2020 law, alternatively "establishes a new state cause of action that simply presumes that the justice system is biased, obviating the need to show individual discriminatory intent," wrote Mac Donald.

AB 2542 amended the state's penal code to enable convicts to challenge a criminal conviction if they can show that

• Anyone involved in their case, including judges, attorneys, police, and jurors, "exhibited bias or animus towards the defendant because of the defendant's race, ethnicity, or national origin";
• "Race, ethnicity, or national origin was a factor in the exercise of peremptory challenges," even in the absence of "purposeful discrimination";
• The defendant received a more serious charge or conviction than similarly situated defendants of other other races or national origins; or that
• The prosecution "more frequently sought or obtained convictions for more serious offenses against people" of the defendant's race and national origin.

In practice, this will help liberate felons or help suspected criminals dodge greater accountability.

Russell Austin has been accused of fatally slashing a pregnant 25-year-old woman, Erica Johnson, and killing her unborn child. Mosby, the head of a robbery-prostitution ring previously found guilty of multiple murders, is on the hook for the gang-related killing of Darryl King-Divens.

Facing the death penalty in Riverside County, Austin and Mosby both filed challenges under the California Racial Justice Act in order to avoid a "death qualified" jury, claiming black defendants were 14 times more likely to have death sentences brought against them than white defendants in similar cases.

Mac Donald indicated that critical details can be glossed over in the racial comparisons advanced in such challenges.

"If a defense expert seeks to show that defendants from one racial group were sentenced more harshly in the past than defendants of other races, he can ignore criminal history in composing the comparison groups," wrote Mac Donald. "He can ignore the heinousness of the crimes committed by the two groups. As long as they were charged under a similar statute, they will be deemed sufficiently comparable to build a case for prosecutorial racism."

Despite the clear potential for abuse, Claudia Van Wyk, a senior staff attorney at the ACLU Capital Punishment Project suggested in January that cutting suspected killers like Austin and Mosby slack over the perception of "systemic racial bias" is "exactly how the California Racial Justice Act is meant to work."

Mac Donald underscored that this scheme, which defense lawyers have already rushed to exploit "will produce unequal justice for victims as well as offenders."

"Racial disparities in prosecuting and sentencing reflect disparities in criminal offending," noted the Manhattan Institute fellow. "In Los Angeles, blacks are 21 times as likely as whites to commit a violent crime, 36 times as likely to commit a robbery, and 57 times as likely to commit a homicide, according to police department data."

Mac Donald highlighted how this data is the result of reports from victims and witnesses who are disproportionately black.

Ultimately, victims like Erica Johnson and Darryl King-Divens may be denied justice in the name of "racial justice."

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