Public Defenders say Racial Justice Act impacts go beyond motion wins

When San Francisco police officers pushed Kenneth McCurry off his non-motorized scooter near the Civic Center, sending him into a wall and spilling the contents of the bag he was carrying, the encounter quickly became a routine narcotics case. Drugs that fell from the bag led to McCurry's arrest.

It ultimately became something much larger.

In May, a San Francisco judge dismissed all charges against McCurry after finding the officers violated California's Racial Justice Act, concluding their actions were influenced by implicit racial bias. The ruling marked another milestone in the evolution of a law that public defenders say is reshaping how courts examine policing, even when overt racism is absent.

Judge Patrick Thompson found that the way the arresting officers described McCurry in their reports and the matter in which they shoved him off his scooter into a wall without warning signaled implicit bias.

According to a news release from the public defender's office, the officers' reports claimed that McCurry had been ducking, evading and fleeing them prior to the arrest. The release says that body-camera footage shows McCurry riding toward the officers instead of away.

"He was really, really ecstatic to know that somebody recognized what happened to him," said Deputy Public Defender Aaron Pressman, who represented McCurry.

A University of Southern California sociology and law professor who specializes in implicit bias testified that the officers showed bias in several decision points. Camille Gear Rich testified that the officers targeted McCurry, following him for several blocks, with the justification that he violated a minor traffic regulation.

The tactic is often used by police departments across the country to stop and investigate people they believe may be suspicious.

McCurry was riding his non-motorized scooter near the Civic Center skate park.

Rich testified that this was an example of an enforcement pattern that the police department's Pretext Stop policy is attempting to remedy. She also testified that research showed implicit bias can distort law enforcement's perception of Black individuals, contributing to unnecessary use of force. She said the officers' use of force without warning was consistent with that research.

Rich also testified that the officers' report language, characterizing neutral behavior as "evasive" or "furtive" framed McCurry's behavior as suspicious. She testified that the language was used to justify their biased response to McCurry's behavior.

The Racial Justice Act, enacted in 2020 and made retroactive the following year, prohibits criminal convictions or sentences obtained through bias based on race, ethnicity or national origin. While early cases often focused on explicit racial language, attorneys say the law increasingly addresses the more subtle ways implicit bias can influence police encounters.

"Hearing that the court at least acknowledged what happened to him, it didn't fix it," Pressman said. "It didn't make it so that this went away. He still had to have gone through the mere fact of being pushed off his scooter and that in itself is a horrible thing."

Explicit bias refers to conscious, deliberate attitudes or beliefs about a group or individual. Implicit bias refers to those same attitudes or beliefs operating unconsciously, without the individual being aware they hold them.

The McCurry case illustrates how the law is being used. After a judge denied Pressman's motion to suppress evidence, Pressman asked the San Francisco Public Defender's Office research unit to review the case for a possible Racial Justice Act violation. Deputy Public Defender Lilah Wolf, who leads the office's Racial Justice Act litigation, concluded the facts warranted a closer examination.

Wolf said identifying violations is rarely formulaic. Instead, attorneys evaluate each case individually, consulting researchers and experts on implicit bias to determine whether race influenced police conduct or courtroom proceedings.

As more cases are litigated, Wolf said attorneys are developing a growing list of indicators that may point to racial bias.

"I think as you do more and more of this, you start to sort of have a list of things that you look for," she said. "And that list is growing all the time. As, No. 1, we talk to more experts and learn more about different ways bias can manifest. And No. 2, case law develops."

Santa Clara County Assistant District Attorney David Angel said that the act has not changed plea negotiations in his office. He said that his office considers any potential Racial Justice Act implications, just as they do with other possible issues with a search or statement.

"Of course, if we find clear cases where an individual's rights were violated due to their race or ethnicity, we would want to take immediate corrective action," he wrote in an email. "In fact, this is one of the reasons why [Santa Clara County District Attorney Jeff] Rosen sought to reverse the death penalty judgments in our county and shift our approach to low level drug prosecution. In both cases, he was troubled by the racial disparity raised by the historic practices surrounding these types of prosecution."

The California District Attorneys Association (CDAA) opposed the Racial Justice Act when the Assembly heard a third reading of the bill in 2021.

"First, while AB 2542 purported to create laws designed to eliminate discrimination in the criminal justice system (an unquestionably important goal shared by CDAA), it did so in a way that created a great risk of depriving society and victims of every race, ethnicity, and national origin of justice notwithstanding indisputable and overwhelming evidence of an offender's guilt," the CDAA wrote in opposition in 2021.

Angel said he would prefer a more systemic approach to addressing the issues the Racial Justice Act attempts to remedy.

"While we share the goals of the RJA, it certainly has not been an efficient way to address historic and current racial inequities.  We would have preferred the Legislature to reach the root of the problem rather than just ask private parties to litigate it on a case-by-case basis," Angel wrote. "Furthermore, asking prosecutors and defense attorneys and for that matter judges to evaluate complex data claims relating to disparate impact is more than a little unrealistic."

Thomas Nosewicz, the legal director of the Committee on the Revision of the Penal Code, said that the act prompts evaluation of statistics relevant to Penal Code section 745(a)(3) and (4).

"The Racial Justice Act allows claims based on statistics that attorneys and judges are not used to using. It requires them to evaluate statistical analysis that they have no training on, and the appellate courts to date have provided the most minimal of guidance of what to do in these cases," he said.

Angel said his office tried to address what they consider the root of the issue through its work on the death penalty and low-level drug offenses.

The Racial Justice Act opens litigation for implicit bias arguments, which some have said can slow some already burdened courts or impact public law offices.

"While actual violations might be rare, litigation over these issues is now at least potentially attendant for every case.  For example, if an individual raises an RJA concern over a 1995 robbery, this might involve trying to engage in a massive and lengthy data analysis of crimes from three decades ago," Angel wrote.

Wolf argues the delays stem from limited judicial resources rather than the statute itself.

"The backlog to me is something that I think is such a small part of the scale in relation to what the act can accomplish," she said. "The backlog, I don't think, is a result of the act itself, but the fact, in my view, that the courts really haven't been prioritizing these motions relative to other types of motions and other issues happening in the courtrooms."

Others have pointed to the added workload for public defenders and the budgetary pressures associated with litigating these claims. Even so, Pressman said those concerns pale beside the law's purpose.

"To me, having a few extra hearings, a few extra court dates, is absolutely nothing compared to the benefits that this act can give us," he said.

For both Wolf and Pressman, the significance of the Racial Justice Act extends beyond legal doctrine.

"I think it's really important with the Racial Justice Act, as with anything else in this practice, to never lose sight of the fact that there are individuals behind this," Pressman said.

The San Francisco Public Defender's Office won its first Racial Justice Act motion in 2021.

"I think courts and prosecutors and other public entities should not be afraid of the Racial Justice Act and should not be afraid of sharing data, that in the best scenario could be a way for people to work collaboratively to identify if there are racial disparities and to figure out ways to solve them." Nosewicz said.