Bill aims to make new law on bias in criminal cases retroactive

A newly proposed bill would build on a law signed last year allowing defendants to challenge criminal convictions with evidence of discrimination.

AB 256 would make AB 2542 retroactive, potentially opening up a rash of challenges to convictions. AB 2542 added evidence of racial discrimination to new or false evidence as factors defense counsel could cite when filing a writ of habeas corpus.

AB 2542's author, Assemblyman Ash Kalra, D-San Jose, introduced the new bill on Thursday. It has 17 co-authors, all Democrats.

"While passing last year's bill was a major step towards addressing institutionalized and implicit racial bias in our courts, the work is not done," Kalra said in a news release. "It is incumbent upon us to make sure that all Californians are afforded an opportunity to pursue justice by making the measure retroactive -- ensuring that these new protections are rightfully extended to those who have already been harmed by unfair convictions and sentences."

It is difficult to access the impact AB 2542 has had on courts, because it only went into effect on Jan. 1 and can only challenge judgments after that date. AB 256 would apply the same provisions to "cases in which a judgment was entered prior to January 1, 2021."

The California District Attorneys Association and the California State Sheriffs' Association led the opposition to AB 2542. Neither group responded to a request for comment on Friday.

But in written testimony to the Senate Public Safety Committee in August, the District Attorneys Association argued "a court will be required to hold lengthy and costly evidentiary hearings involving the testimony of attorneys, law enforcement officers, jurors, experts, or other members of the criminal justice system ... These hearings will necessarily involve massive amounts of statistical evidence which must take into account numerous and intangible factors in order to be valid and will grind the system to a halt at a time when the court system is already facing tremendous delays and burdensome costs in holding trials due to the pandemic."

AB 256 would appear to create a potentially larger burden on courts, by opening up years of convictions to review. Court backlogs may also be worsening amid a second surge of the COVID-19 pandemic. In October, then-Los Angeles County Superior Court Presiding Judge Kevin C. Brazile announced his court had a backlog of 7,000 criminal cases awaiting hearings.

Potential evidence of discrimination could include racist statements by police, prosecutors or judges. Counsel could also argue prosecutors filed racially motivated peremptory challenges in jury selection, or that a defendant received a longer sentence or more serious charges than that typically given to someone of another race.

The bill's proponents say it would address decades of racially discriminatory prosecution in the state. Much of the coalition that helped pass AB 2542 is behind the new bill, including the ACLU and the California Coalition for Women Prisoners

AB 2542 was also a response to McCleskey v. Kemp, 481 U.S. 279 (1987). The U.S. Supreme Court ruled that criminal defendants must show intentional discrimination in order to challenge their prosecution. Critics have argued such bias is very difficult to show without very specific evidence that can be difficult to obtain, even in courts that routinely give minorities harsher sentences.