Abstract

Racial disparity is a fact of the US criminal justice system, but under the U.S. Supreme Court’s holding in McCleskey v. Kemp, racial disparities--even sizable, statistically significant disparities--do not establish an Equal Protection violation without a showing of “purposeful discrimination.” The California Racial Justice Act (CRJA), enacted in 2020 and further amended in 2022, introduced a first-of-its kind test for actionable racial disparity even in the absence of a showing of intent, allowing for relief when the “totality of the evidence demonstrates a significant difference” in charging, conviction, or sentencing across racial groups when compared to those who are “similarly situated” and who have engaged in “similar conduct.” Though the CRJA was enacted over two years ago, two obstacles have made its promised remedies exist largely on paper only– confusion about how to apply its new test and a lack of access to the data needed to demonstrate a significant difference. This article attempts to overcome these obstacles by exploring and interpreting the significant difference test and by analyzing a database of disparities that enables controls for criminal history and geography (similarly situated) and overlapping elements (similar conduct) based on comprehensive data from the California Department of Justice. We also present two case studies that demonstrate how defendants might establish an initial showing of significant difference sufficient to successfully move for discovery.