By Chesa Boudin, Executive Director of the UC Berkeley Criminal Law and Justice Center
I’ve been face-to-face with the racial disparities in the criminal legal system my whole life. When I was 14 months old, my parents, both White, were arrested and, later, sentenced to decades of incarceration. My earliest memories are of waiting in lines to go through metal detectors and steel gates just to give my parents a hug. Way before I even knew the word “racism,” I noticed that the lines at those prisons and jails were mostly Black and Brown women and children. That experience was part of why, after law school, I became a public defender in San Francisco.
The racial disparities I’d seen as a child were on full display in the Hall of Justice and the jail above it. Not only were most of my clients Black and Brown but also, in a city with less than 5 percent Black residents, the jail population hovered around 50 percent Black. Those disparities were driven not only by upstream inequity in housing, healthcare, education, and employment, but also by decisions police, prosecutors, and judges made every day.
For example, I have a vivid memory of watching one of my colleagues discuss a new case with a judge and prosecutor in the judge’s chambers. After some back and forth about the facts, the judge agreed that he would release her client pending trial. A few minutes later, when the judge took the bench and her client walked out of the jail cell, we all saw a tall, strong Black man with long dreadlocks. Without any new evidence or argument from the prosecutor, the judge reversed his prior position and set a high money bail to keep the man in jail.
When, years later, I was elected as San Francisco’s district attorney, I set about making policy changes that could mitigate the racial disparities in the criminal legal system. In addition to policies like prohibiting the use of money bail to effectuate detention, I also implemented a policy against using three-strikes sentencing enhancements. Research made clear that these harsh sentencing tools were far more likely to be used against Black men, were expensive for taxpayers, and did little to advance public safety. My policy was a strong presumption against charging prior strike enhancements; exceptions to that presumption had to be approved by me. Most line prosecutors in my office only rarely, in extreme cases, asked for an exception to be granted. But there was one White career prosecutor who asked to use strike priors almost every week. If the research weren’t clear enough, 100 percent of the cases where he asked to use a prior strike involved Black male defendants. The fact is, even as the elected DA I didn’t have the tools needed to fully address the scope of racial bias at every step of the system.
The California Racial Justice Act (RJA) is a first-of-its-kind tool to combat all kinds of racial bias in the criminal legal system. This landmark legislation, passed in 2020, addresses racial disparities in the criminal legal system by allowing defendants to challenge their convictions and sentences if they can show racial bias or disparities, even without proving discriminatory intent. The RJA represents a pivotal shift in addressing structural racism within our legal framework.
I currently serve as the founding Executive Director of the Criminal Law & Justice Center at UC Berkeley School of Law. One area of significant focus of our first year was work related to the RJA. Our center has prioritized work on the RJA for several reasons. First, when we launched the center, I went on a listening tour, systematically gathering input and ideas from a wide array of stakeholders on campus, and in the community. A common theme in many of those conversations was a desire for work understanding and facilitating effective implementation of the RJA. Second, the RJA is a groundbreaking law that requires rigorous legal and empirical analysis. Implementing it effectively demands a deep understanding of the interplay between law, racism, and data science. Most lawyers and judges do not have formal training in statistics, for example, which may be required to advance, rebut, or rule on claims under the RJA. Third, the RJA has immense potential to reshape the criminal justice landscape in California in ways that address historic inequity and foster public trust that the legal system is doing justice.
As we reflect on our first year, I am filled with gratitude for the incredible support and collaboration from our partners, colleagues, and community members. Together, we are making strides toward a more just and equitable legal system. Let us continue this vital work with courage and determination, never fearing “too much justice.”
