Yale Law Journal – Fruit of the Racist Tree: A super-exclusive rule for racist policing under California’s Racial Justice Act

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abstract. This commentary explores a new legal remedy for racial bias or animosity shown in police investigations presented in the recently enacted California Racial Justice Act (RJA) of 2020. The commentary argues that California’s RJA, in an attempt to address racism throughout the state’s criminal justice system, is establishing a “super-barring rule” that grants relief from criminal penalties to those convicted as a result. to racist police conduct or practices. The commentary then examines the broad implications of such a rule for those subject to criminal sanctions, police and prosecutorial policy, and the public’s understanding of the racialized harms that police can inflict. In doing so, this commentary argues that the super-exclusion rule presents new mechanisms of police accountability and a vision of how a state could embody a full commitment to combat racism in policing. .

author. Yale Law School, JD scheduled for 2022. My greatest thanks go to Monica C. Bell, without whom this commentary would never have seen the light of day. I am grateful to Miriam Gohara and James Forman Jr. for constructing spaces that shaped and honed my approach to this piece. I would also like to thank the members of the Spring 2021 Race, Inequality, and the Law Seminar for their energy, encouragement, and commiseration; Lisa Romo, Natasha Minsker and Miriam Baer for their invaluable advice and insights; and Emily Lau, Eleanor Roberts, Rachael Stryer, Ashley Taylor, my parents, and all who patiently stood up to my blame and worries and supported me nonetheless. Finally, my gratitude to Prashanta Augustine and the thoughtful editors of the Yale Law Journal. I dedicate this commentary to the activists and advocates who made possible the enactment of the Racial Justice Act and their vision for a more just and equitable California.

introduction

The storm of racial justice protests that unfolded across the United States following the police killing of George Floyd swept California with no less fervor, from small towns across the state to big cities. Passed in the wake of these protests, the California Racial Justice Act (RJA) of 2020 announced the state’s goal of combating racism throughout its criminal justice system. Included in the law, but largely ignored by supporters and detractors alike, is language that prohibits law enforcement officers from displaying racial bias or animosity during a criminal case.

These little-heralded law enforcement provisions represent a new and important legal approach to deterring and redressing police racism. California’s RJA provides the legal framework for what this commentary calls a “super-exclusion rule” which, in effect, jeopardizes all charges, convictions and sentences obtained as a result of racist policing. . Like the Fourth Amendment exclusionary rule, the super-exclusionary rule uses the formal criminal trial process to deter unwanted police behavior, but with a much broader scope. If applied as proposed here, the super-exclusion rule could ensure permanent alleviation of criminal penalties for people of color and force substantial changes in police behavior. Beyond its initial impact within the state, the rule’s broader implications extend to national conversations about racism and policing, as well as the repercussions for everyone across the system. criminal justice.

Part I of this commentary summarizes the intent and structure of the California AJN. Using the Fourth Amendment exclusionary rule as a conceptual foil, Part II introduces California’s RJA superexclusionary rule and argues that it represents an unprecedented legal remedy against police racism. Part III explores possible applications of the super-exclusion rule and its potential to mitigate the racialized harms that the criminal justice system inflicts on people of color. By exposing the operation and implications of the rule, this commentary calls for an imaginative and expansive approach not only to California’s RJA, but also to conceptions of racist policing itself.

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