by Morgan Zamora, Ella Baker Center Prison Advocacy Manager
Since its inception, the United States criminal legal system has been shaped by the racism upon which this country was built. Despite growing acknowledgement of this dark history and its harmful impacts, legislative leaders and judicial actors have made little progress toward remedying the life-altering consequences of these biases.
McCleskey v. Kemp remains the national standard— a stark example of this failure. In McCleskey, compelling evidence in the form of a statistical study that analyzed over 2,000 cases demonstrated that Black defendants with white victims were disproportionately sentenced to death in Georgia. Nevertheless, in 1987 the U.S. Supreme Court held that, since McCleskey could not prove the discrimination was “purposeful,” no constitutional violation occurred. Justice William J. Brennan’s dissent exposed the Court’s true concern: “that its unwillingness to regard petitioner’s evidence as sufficient is based in part on the fear that recognition of McCleskey’s claim would open the door to widespread challenges to all aspects of criminal sentencing.” Brennan’s warning—that the Court acted out of a “fear of too much justice”—remains painfully applicable today.
Some states have attempted to remedy this injustice with little success. Kentucky enacted the first Racial Justice Act (RJA) in 1998, barring the state from seeking death on the basis of a defendant’s race. To date, no capital defendant in Kentucky has prevailed on an RJA claim. In 2009, North Carolina followed with their own RJA, which allowed those on death row to challenge their sentences through statistical evidence of racial discrimination. After courts found prosecutors exhibited widespread racially discriminatory behavior impacting death penalty convictions, the legislature repealed the Act in 2013. Amid ongoing legal challenges, only five people have benefitted from the RJA’s protections in North Carolina.
In 2020, California passed the most expansive Racial Justice Act yet: one that applies not only to those condemned to death, but to every person who comes into contact with the state’s criminal legal system. The RJA prohibits the state from seeking or obtaining a conviction, or imposing a sentence based on race, ethnicity, or national origin. The Act recognizes four categories of violations: 1) bias towards the defendant by a judge, attorney, police officer, or expert witness; 2) racially coded statements used against the defendant at trial; 3) the prosecution seeking more severe charges against the defendant compared to similarly situated cases in the same county; or 4) the court imposing a more severe sentence on the defendant compared to similarly situated cases in the same county.
As with any major legal reform, implementation of the RJA has not been seamless. Since its passage, the Ella Baker Center and our allies have worked to make the RJA an even more effective tool through technical legislative fixes and procedural clarifications. In 2025, our community was able to pass AB 1071 (Kalra), which clarifies the right to counsel standard, ensures discovery access, and establishes proper remedies when an RJA violation is found.
This same year, we saw SB 734 (Caballero) enacted to prohibit findings of RJA violations from being used in administrative appeals of punitive actions against law enforcement, though the underlying conduct may still be introduced. If an RJA petition is filed by an attorney, they must serve a copy of the motion on the law enforcement agency employing the officer whose conduct is at issue. While SB 734 will not impact an individual’s ability to bring a valid RJA claim, it does shield law enforcement from the consequence of having an RJA finding based upon their actions used for disciplinary purposes.
Individuals who have previously filed a habeas petition raising other claims are not precluded from filing retroactive RJA claims. However, all new habeas claims—including RJA claims—must be brought in a single petition. Filing a habeas petition without including an RJA claim may foreclose the ability to raise one later. For condemned individuals, there are additional risks with filing an RJA petition due to special rules imposed by Prop 66 which prevent the filing of multiple habeas petitions to late assert unraised claims. Anyone considering filing a pro per RJA petition is recommended to reach out to their contact at the California Appellate Project (CAP), currently appointed attorney, or their county public defender prior to filing. It is extremely important to consider all potential habeas claims to avoid missing out on the opportunity to address them.
The lack of legal support available for RJA claims at this time is frustrating, yet unsurprising in light of California’s chronic underfunding of indigent defense— especially in post-conviction cases. Despite these constraints, attorneys and advocates are constantly working to fulfill the promise of racial justice that California made 6 years ago.
It is highly recommended that individuals contact their previous attorney or the public defender for their county of conviction prior to filing a claim. The USF Law Racial Justice Clinic is also accepting intake forms for potential RJA claims. Individuals seeking a copy of the Clinic’s intake form can contact the Ella Baker Center or USF directly: University of San Francisco School of Law, Attn: USF Racial Justice Clinic, 2130 Fulton Street, KN211, San Francisco, CA 94117-1080. Please, be advised that the Clinic will accept intake forms from all individuals, but has very limited capacity to provide support. Due to conflicts, they cannot support anyone sentenced out of San Francisco or Alameda counties.
The Office of the State Public Defender is currently developing additional materials that may be supportive as incarcerated individuals develop their claims and can be contacted at: Office of the State Public Defender, 1111 Broadway, Ste 1000, Oakland, CA 94607.
There are no recommendations for private attorneys or other organizations that can support individuals in filing claims at this time. It is important to be cautious of “legal services” offered by companies that reach out directly to impacted folks, claiming to provide legal assistance and requesting payment. Do not sign any documents, share case-related information, or send these entities money before verifying their legitimacy.
It is important to keep in mind that there is no deadline for filing a claim under the RJA and, though delays in accessing needed legal support are frustrating, those with viable claims should not feel the need to rush to receive relief. Since the law is so new, its interpretation, application, and processes are ever-changing. It is vital that those bringing claims are as thorough as possible to improve their chances for success.
Access to the county-level data necessary to support RJA claims remains a major barrier. The only true solution to this problem requires state-mandated transparency and standardized data collection and retention. Until this issue is one day remedied on a structural level, organizations throughout the state have compiled resources in an effort to support our communities. Some resources that those filing claims have found useful thus far include: the ACLU Database (https://www.aclunc.org/documents-related-implementation-racial-justice-act), the Stanford Three Strikes Project (https://law.stanford.edu/three-strikes-project/), the UCLA Special Circumstances Conviction Project for those serving life without the possibility of parole (https://csw.ucla.edu/research/feminist-anti-carceral-studies/sccp/), and the Police Misconduct Records Database (https://clean.calmatters.org/).
The Ella Baker Center is committed to ensuring that our own resources are always within reach of those who need them most. Our RJA4ALL Guide, recorded trainings, and more can now be found on the Edovo app on all prison and jail tablets. Incarcerated individuals in need of a physical copy of any of these resources can write to:
Ella Baker Center for Human Rights
1419 34th Ave, Suite 202
Oakland, CA 94601
Loved ones and advocates on the outside can reach out to policy@ellabakercenter.org with questions or visit ellabakercenter.org/rja-info/.
What the Supreme Court feared in 1987 holds true today: the RJA opens the door to thousands of legitimate claims of racial bias. That is precisely its purpose. As public discourse on racism shifts and the general population turns a blind eye to disparities that prove what communities of color have always known to be true, we remain steadfast in our dedication to ensuring that every person who harmed by the discrimination inherent in California’s criminal legal system can access the justice that the RJA promises— and that this promise becomes a reality for incarcerated people.
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