On July 13, 2020, gunfire broke out between two cars in the Bay Area town of Antioch, California. One of the cars’ occupants, Daunzhay Young, was hit during the fusillade and was rushed to the hospital. Young survived—this time.

Oakland’s gang wars were radiating outward, including to this once-bucolic city northeast of Oakland. Young was a member of Oakland’s Case gang. A month later, another Case gangbanger was shot while sitting in a car in Oakland. He died the next day. On August 27, 2020, a third Case member was shot in Oakland; three guns were collected at the scene. Case’s archenemy, the ENT gang—named for three dead homies—was on a roll.

On August 29, 2020, Daunzhay Young’s luck ran out. A male chased him down a quiet residential street in Antioch in the middle of the day, gun blazing. After Young collapsed, the gunman stood over him and pumped him with additional shots from a semiautomatic pistol. The execution was successful.

Antioch’s next known entry in the Case–ENT feud occurred on February 27, 2021. A 21-year-old male was ambushed in his car at an Antioch gas station in the middle of the day; when the ambushee tried to escape on foot, he was shot ten more times. After he fell, his assailant, later identified as Terryonn Pugh, pistol-whipped him. The victim’s Case confederates returned fire from their car. Later that evening, Case members sprayed bullets around an Oakland intersection to show ENT who was boss.

On March 9, 2021, a mystery car was parked for hours on Aspen Way, a residential street in Antioch. Two young males emerged from a nearby house and entered a vehicle on the same street. The mystery car accelerated toward them, its occupants unleashing a salvo of bullets. The driver was critically injured and the passenger wounded. The shooters, who included Terryonn Pugh from the February 27 gas-station attack, fled the scene. A helicopter transported the injured driver to a hospital, courtesy of Antioch taxpayers; the wounded passenger was taken by ambulance. The injured driver died.

By then, 27 law-enforcement agencies in California and Nevada were engaged in a massive effort to shut down the Case–ENT bloodbath. On March 31, 2021, SWAT, warrant, and gang teams from Antioch, Merced, Los Angeles, and the town of Brentwood tried to serve warrants on the suspects in the March 9 Aspen Way shooting. The suspects fled but were chased down and caught. By the time the multiagency law-enforcement action, known as Operation Windstar, wrapped up, dozens of adult and juvenile members of Case and ENT had been arrested for shootings, robberies, and burglaries; 40 firearms and large amounts of cash had been seized. The Antioch police department had devoted nearly 7,000 hours of undercover surveillance, crime-scene reconstruction, interviews, and gang research to the enterprise.

The mood was celebratory at the April 13, 2021, news conference announcing the conclusion of Operation Windstar. Contra Costa County District Attorney Diane Becton congratulated her prosecutors and inspectors “for their important work in filing this case.” (Antioch is in Contra Costa County.) Becton’s office and the federal, state, and local law-enforcement agencies involved in the effort “did a tremendous job in bringing some closure to the victims’ families surrounding these heinous acts of violence,” Becton said.

That closure proved short-lived. In April 2023, a superior court judge in Contra Costa County threw out the life-without-parole sentences previously imposed on the Aspen Way murder defendants, on the ground that the sentencing of black gang members for gang murder in Contra Costa County had historically been “systemically biased.” The defendants did not claim that the legal process against them was unfair. Nevertheless, because allegedly race-based sentencing disparities had occurred in the past in Contra Costa County, the life-without-parole sentences of the Aspen Way killers Eric Windom, Terryonn Pugh, Keyshawn McGee, and Allen Trent were now invalid.

California is about to demonstrate what a world constructed from the tenets of critical race studies looks like. The sentencing reversal in California v. Windom is the result of a recent law that will likely bring the state’s criminal-justice system to its knees. The Racial Justice Act, passed in 2020 without meaningful public review, turns long-standing academic tropes about implicit bias and white privilege into potent legal tools. And the floodgates are about to open. Starting this year, the RJA allows anyone serving time in a California prison or jail for a felony to challenge his conviction and sentencing retroactively on the ground of systemic racial bias.

The Racial Justice Act operationalizes the proposition that every aspect of the criminal-justice system is biased against blacks. But according to the act’s legislative authors, it’s too hard to prove such bias in the case of individual arrests and prosecutions. Therefore, the act does away with the concept of individual fault and individual proof. From now on, statistics about past convictions are sufficient to invalidate a present trial or sentence.

The RJA explicitly repudiates a key Supreme Court precedent that had governed bias challenges in criminal trials. The plaintiff in McCleskey v. Kemp (1987), Warren McCleskey, a black man, was facing the death penalty for murdering a white police officer in Fulton County, Georgia. McCleskey presented a study purportedly showing that killers of all races in Georgia were more likely to be sentenced to death if their victim was white. Blacks who killed whites were at greatest risk of capital punishment. That alleged historical disparity in sentencing invalidated his own death sentence, argued McCleskey. The Court, in a 5–4 decision, disagreed.

Defendants must show that criminal-justice decision-makers were purposefully biased against them, in order to throw out a conviction or a sentence under the Equal Protection clause of the Fourteenth Amendment, the Court ruled. Statistics purporting to show a historical pattern of bias are not enough to support the requisite showing of individual discriminatory purpose against a particular defendant.

Thanks to the RJA, McCleskey no longer governs bias challenges in California. From now on in California, statistics purporting to show a pattern of bias in the past are enough to invalidate a current arrest, criminal charge, or judicial sentence.

And what statistics they are! The Antioch Racial Justice Act case, California v. Windom, exemplifies the analyses that pass muster under the act. Through discovery requests to the district attorney’s office, defense counsel assembled a database of 89 defendants who had been charged with gang murder in Contra Costa County from 2015 to 2022. Forty-eight of those defendants were black. There were 41 defendants in the comparison pool, made up of any nonblack race the defendants could get their hands on, since white gang-murder defendants in Contra Costa County were virtually nonexistent. Sixty-two percent of the black gang murderers (30) got a sentence of life without parole because of the egregiousness of their killings. It was that so-called LWOP sentence that the four defendants in Windom were challenging. A little over 53 percent of the nonblack gang murderers (24) got a sentence of life without parole. The defense expert, University of California–Irvine criminologist Richard McCleary, used fancy statistical footwork to massage those small differences in an already-small sample size into larger significance. That was the least of the analysis’s problems, however. The real deficiency was that McCleary discarded the rule of comparing like with like. He made no effort to determine the criminal histories of the defendants in the various comparison pools to see if those defendants really were similarly situated. He made no effort to determine how heinous were the murders committed by members of the various comparison pools.

But charging and sentencing always take a defendant’s particular history and the details of his crime into account. Two defendants can both be charged under an aggravated assault statute, but if one defendant has 11 prior convictions for attempted murder, robbery, and carjacking, say, while the second defendant has never been arrested before, a prosecutor will seek different sentences in their two cases. Likewise, two defendants can both be charged with murder, but if one killing involves a higher number of what are known as special circumstances, their sentences will reflect those differences. (Special circumstances include killing a witness, ambush, or torture; they go into the determination of life-without-parole sentences.)

McCleary needed to show that the 17 nonblack defendants in the comparison pool who did not receive a life-without-parole sentence had similar criminal histories or had committed murders of equal egregiousness to the 30 black defendants who did receive life-without-parole sentences. Had he shown such similarities, the argument that race explained their different sentences would be plausible. But McCleary did not even try to look at criminal records or the severity of the murders. The judge, however, was willing to accept the unproved assumption that all the gang-murder defendants in the comparison pools engaged in similar conduct and had similar histories. He would not accept the proposition, he wrote, that “Black defendants charged with gang murder [have], on average, worse criminal records than non-Black defendants, committed the crimes in crueler fashion, or committed more provable crimes,” absent evidence to the contrary. The Contra Costa County district attorney did not provide such evidence, having not even attempted the labor-intensive analysis of the data that would have been necessary.

After the judge had ruled in California v. Windom, a Contra Costa prosecutor commissioned his own study of the data. It turned out that the black gang members in the life-without-parole pool had committed more heinous murders than the nonblack gang members, as measured by the special circumstances in their cases. Once that difference was considered, there was no racial difference in the likelihood that a defendant would get life without parole. The district attorney’s office chose not to publicize the study and has not made it publicly available.

And now, based on a statistically inadequate analysis, not only are the four defendants in Windom entitled to resentencing, but all 30 black gang convicts in the historical pool who had received life without parole can now sue to reopen their sentences, thanks to the RJA’s retroactivity provision. How could criminal history, so central to the practice of criminal law, be deemed irrelevant to Racial Justice Act comparisons? Because the RJA is based not on real-world facts but on academic conceits about a totalizing system of white supremacy. The act establishes an infinite regress of bias from which no escape is possible. If a prosecutor tries to offer what the act calls “race-neutral reasons” (such as criminal history) for either past prosecutions or the current one, those reasons can be challenged, in the words of the statute, as the product of “systemic and institutional racial bias, racial profiling, and historical patterns of racially biased policing and prosecution.”

“In every aspect of the justice system, there is bias,” says San Jose assemblyman Ash Kalra, author of the 2020 Racial Justice Act. (Rich Pedroncelli/AP Photo)

Academic ideas about what counts as bias are also now part of the criminal-justice ecosystem, and their academic peddlers are in demand as expert witnesses. A police officer stopped a felon on federal probation in a high-crime area of San Francisco. The felon, Demond Finley, had an illegal, loaded handgun in his car. At trial, defense counsel tried to suppress Finley’s gun under the Fourth Amendment’s search-and-seizure clause, but the judge ruled the search legal. Time to cue up an RJA motion! “Race expert” Dante King testified that the officer’s use of the phrase “high-crime area” in explaining his stop demonstrated “bias against people of color.” (That same Dante King would assert in February 2024 that “whites are psychopaths [whose] behavior represents an underlying, biologically transmitted proclivity.” Labeling whites “psychopaths” does not demonstrate bias against people of whiteness, apparently.) An appellate court upheld Finley’s RJA claim. Never mind that the neighborhood where the stop took place was, in fact, crime-ridden or that a neighborhood’s level of crime can help determine the legality of a stop. After the ruling in Finley v. San Francisco, stopping suspicious cars in high-crime areas in California will henceforth be even more legally risky than before, and carrying illegal guns even less so.

The RJA has helped revive the academic concept of implicit bias (defined as “unconscious, unintentional bias against disfavored groups”). Proof of the existence of implicit bias has rested on a computer-generated exercise called the implicit association test. But the test has been shown to be variable in its results and incapable of predicting actual biased behavior. Even some of the test’s developers now acknowledge its weaknesses. But while the concept of implicit bias may now be contested even in academia, the Racial Justice Act guarantees that it will determine the outcomes of criminal cases.

In January 2022, for example, a member of San Diego’s gang-suppression team stopped a driver who turned out to have a concealed firearm in his car—a misdemeanor in California. The driver, Tommy Bonds, claimed that he was stopped only because he was black, in violation of the RJA. The police officer testified that he did not know Bonds’s race when he stopped him. The trial court held that the stop could not have been the product of racial bias if the officer did not know Bonds’s race. The appellate court reversed—not on the ground that the officer did, in fact, know Bonds’s race but on the ground that implicit bias could have affected the officer’s actions, even if he did not know Bonds’s race. Bonds had called a sociologist from California State University–San Marcos who specializes in race studies as an expert witness. She emphasized that implicit bias was, by definition, “unintentional and unconscious” (italicization in the original), as the appellate judge wrote in his opinion. Here, such factors as the location of the stop could have triggered the officer’s unconscious biases toward black drivers, without the officer knowing that this particular driver was black.

The Racial Justice Act is a full-employment measure for such academic “race experts.” A parade of them testified in another gang-murder case from Antioch. In 2017, Gary Bryant, Jr. and Diallo Jackson were convicted of having killed a gang rival in an Antioch apartment complex in 2014. During the initial trial, the prosecutor had played the defendants’ rap videos and quoted their rap lyrics to establish the defendants’ gang affiliations. The RJA now made such a trial strategy actionable. In the convicts’ subsequent 2021 RJA suit, three “experts” in implicit bias and rap music claimed that the prosecutor had triggered the jury’s biased associations of black men with rap music and violence. It mattered not that the prosecutor did not intend such alleged triggering and that he was not himself biased, as the defense counsel acknowledged. Bryant and Jackson’s 2017 convictions for first-degree gang murder were reversed in 2022 and a new trial ordered. The chance that witnesses to the 2014 murder will still be available and that evidence will still be fresh is negligible.

The greatest impact of the RJA on California’s criminal-justice system, at least in the short run, may come not from its activation of left-wing race concepts, however, but from its capacity to bury district attorneys’ offices under an avalanche of discovery requests. Courts have been grappling with what a defendant needs to show as a preliminary matter under the RJA to gain access to vast amounts of prosecutorial records. The answer is: very little. A defendant in Solano County challenged his prosecution for felony possession of Ecstasy for sale on the ground that blacks in Solano County were historically more frequently charged with that crime than were dealers of other races. He sought the names and case numbers of everyone charged, or who could have been charged, with felony possession of Ecstasy for sale in Solano County from January 1, 2016, to March 17, 2021; the names and case numbers of everyone charged, or who could have been charged, for other drug offenses over that time period; the names and case numbers of everyone whom the DA declined to charge for those offenses; and the disposition of all those cases. To justify his request, Clemon Young, Jr. invoked a study allegedly showing that black drivers in California were stopped at higher rates than nonblack drivers. Young claimed that his own stop resulted from racial profiling. Ergo, he had a right to prosecutorial materials on charging drug crimes.

This was a non sequitur—evidence about police stops is irrelevant to how prosecutors charge drug crimes—and the trial court denied Young’s discovery request. The appellate court reversed. Pending a rehearing, the appellate court allowed Young, in theory, to acquisition reams of prosecutorial materials about charging by claiming that police-car stops in California were biased.

The defense bar and its media supporters were ecstatic. The Los Angeles/San Francisco Daily Journal exulted that the “Young Court’s broad interpretation of [the RJA’s] discovery provisions open[s] the door for defense counsel to leverage the Act to negotiate reduced or dismissed charges or sentences, request a mistrial, discharge a jury panel, dismiss enhancements or special circumstances or reduce one or more charges, vacate convictions and sentences, and order new proceedings.” No wonder that the mere threat of invoking the RJA is leading prosecutors to alter their litigation and sentencing strategies.

The act places no time limits on how far back a defendant can request records or, as we have seen, on what the relevant comparison groups are. Prosecutors’ offices will have to extract, review, and redact records potentially dating back decades. The California legislature gave the Office of the State Public Defender over $5 million in 2023 to litigate RJA claims. No money was allocated to district attorneys’ offices to defend against those claims.

A network of academics and computer scientists is collaborating to create databases that the defense bar can draw on to bring systemic bias claims. The ACLU of Northern California has asked ten county jurisdictions to hand over all their criminal records since 2005. These data repositories are not intended to be neutral. At a groundbreaking conference on the RJA at UC Berkeley School of Law in February 2024, a law student involved in one such project asked the audience: “If you are afraid [that the database] might be useful to DAs, let us know.”

The defense bar and activist groups know how powerful a tool the California legislature has handed them. An ACLU attorney told the Berkeley conference: “We have the potential for something grand: to unravel an unjust system. We are celebrating the dawn of a new era.”

How did something so transformative pass with so little attention? Indeed, most of the legal profession in California remains unaware of the RJA. Its drafters and supporters pushed it through at the very end of the 2020 legislative session, using questionable parliamentary techniques. The most notorious was a practice known as gut-and-amend, whereby a bill that has gone through normal legislative channels before losing momentum is reamed out and its language replaced with unrelated legislative content at the last minute. After the RJA had stalled in the assembly, its author, San Jose assemblyman Ash Kalra, found a moribund bill in the California Senate, removed its language, and inserted the RJA text. With minutes ticking down on the 2020 session, the newly repurposed bill was sent back to the floor of the assembly without the traditional committee oversight. Police and district attorneys’ associations were distracted by legislation on police violence and other criminal-justice reform matters and paid little attention.

What scant opposition emerged concerned the bill’s retroactivity provisions. Kalra removed the retroactivity clause to carry the RJA over the finish line. Ordinarily, protocol would require that RJA sponsors wait a few years before trying again on retroactivity, Kalra told the Berkeley conference. In this case, the year after initial passage, Kalra pushed through amendments containing the previously deleted retroactivity provisions. Those provisions will unleash a cascading series of lawsuits—in 2024, enabling prisoners still behind bars to challenge their convictions; in 2025, enabling felons convicted in 2015 or later to challenge their convictions, even if those felons have since been released; and in 2026, allowing any felon who has ever been convicted to challenge his conviction, even if he is no longer in prison.

In other words, the bill is a ticking time bomb. Kalra’s colleagues “did not understand how significant the RJA was,” he told the Berkeley RJA conference. “Maybe now they do.” Racial justice advocates are distributing material in prisons to tutor convicts on bringing RJA actions. Kalra is a celebrity among the incarcerated. He has been accosted by his fans at least eight times while visiting prisons.

Under the new law, serious offenders can allege bias merely by showing that a disproportionate number of those convicted of crimes in a county are minorities. (Gina Ferazzi/Los Angeles Times/Getty Images)

But however justified the activists’ triumphalism, they sense a cloud on the horizon: the reality of racial crime disparities. Much effort was expended at the Berkeley conference brainstorming about how to address claims that different rates of crime, not law-enforcement bias, cause disparities in police activity and incarceration rates. If district attorneys or judges assert that different groups commit crime at different rates, advised one conferee: “Say: prove it!” Anyone making such a claim, moreover, is allegedly obligated to offer a theory for why such different rates exist. David Ball, a law professor at Santa Clara University, asked facetiously: “If I tan, do I become more violent?” Ball reminded his audience that American eugenicists had claimed a correlation between race and crime. Ergo, anyone using empirical data about crime rates today is flirting with, if not actively promoting, eugenics.

“The bill is a ticking time bomb. Kalra’s colleagues ‘did not understand how significant the RJA was,’ he said. ‘Maybe now they do.’ ”

But someone asserting that crime drives the criminal-justice system is not obligated to explain why different groups have different rates of crime. The question of whether actual crime commission or racism on the part of law-enforcement personnel is responsible for black overrepresentation in prison is distinct from the question of why black crime rates are so high. For purposes of evaluating the truth claims of the Racial Justice Act, only the first question is germane. The advocates want to change the subject, however, and put those claiming the existence of crime disparities on the defensive, lest others also break the taboos around black crime.

Color-blind technology is now suspect, in a shoot-the-messenger reflex. The ShotSpotter system uses aural sensors to alert police to drive-by shootings, providing the exact location of gunfire, the likely number of shooters, and whether automatic weapons were involved. It overcomes the apathy barrier to solving inner-city shootings, most of which are not called in to the police. Racial justice advocates hate ShotSpotter, however. They allege that it merely reinforces biased beliefs about violent-crime commission.

And now the RJA has given them a new tool to discredit ShotSpotter and any jurisdiction that uses it. A Los Angeles public defender at the Berkeley conference called the technology “bogus.” When she was defending a shooting case in Pasadena, she asked the district attorney to turn over every case ever filed because of a ShotSpotter alert. The DA’s office responded that it did not keep such data. The public defender then produced a map of ShotSpotter sensors in Pasadena. The sites overlapped with minority neighborhoods. Conclusion: bias. The Pasadena police department, on this view, had placed the sensors not based on incidence of gunfire but on the incidence of minority residents, simply out of prejudicial whim. The district attorney dropped the shooting case, facing the threat of a massive RJA request for data that it did not possess and of a totalizing narrative, impervious to facts on the ground.

(Cameras are also biased. At the Berkeley conference, Kalra complained about videos “showing black faces running into stores and breaking car windows.” But the videos document actual events. If there were comparable footage showing white looting, the clips would be all over the news.)

The ShotSpotter critique is emblematic of the RJA mentality. We are to believe that white neighborhoods are experiencing an epidemic of drive-by shootings and other crimes that the residents and the police ignore. If only ShotSpotter sensors were placed in white neighborhoods, they would pick up a proportional number of white shooters and white victims to match what is recorded in black and Hispanic neighborhoods. The belief that violent-crime rates are highest in minority communities is, according to RJA supporters, a function of over-policing, not of over-offending. But the bodies don’t lie. In 2021, blacks between the ages of 10 and 24 nationally died of gun homicide at nearly 25 times the rate of whites in that age cohort, according to the CDC. No one is hiding from the authorities the white corpses that would level that disparity. Black juveniles in New York, Chicago, Los Angeles, and Philadelphia were shot at 100 times the rate of white juveniles from March 2020 to December 2021. No one prevents white shooting victims from going to a hospital emergency room and getting counted in a city’s gun-violence data. If white children were slaughtered at the black rate, a revolution would break out.

In Los Angeles, blacks are 17 times as likely to be a homicide victim as whites, and 13 times as likely statewide. Who is killing these black victims? Not the police and not white supremacists, but other blacks. In Los Angeles, blacks are 57 times as likely to be a homicide suspect as whites. Blacks are 21 times as likely to commit a violent crime as whites in Los Angeles, and 36 times as likely to commit a robbery. These data come from witnesses to, and victims of, these crimes, mostly minority themselves, in their reports to the Los Angeles Police Department. In California as a whole, blacks are 11 times as likely to get arrested for homicide as whites, even though a greater proportion of white homicides are domestic, and thus more easily solved than gang shootings.

The media, academics, and race advocates bury these disparities, preferring to rail about phantom white racism rather than confront the reality of black crime commission and victimization. The Prosecutors Alliance of California, a progressive group, declares in its pro-RJA materials that “Blacks and Latinx” constitute “more than 90 percent of adults with gang enhancements in state prison,” as if that fact self-evidently proves bias. But those groups commit the grisliest gang crimes—white gangs don’t come close. A former homicide detective in Oakland says that any comparison between white and black drive-bys is “ridiculous.” “White gang violence in the Bay Area barely registers,” he says. If the RJA advocates want to insist that white biker gangs engage in the same tit-for-tat lethal feuds that led to Operation Windstar in Antioch, they should locate the bodies. They cannot.

So desperate are the RJA forces to maintain the fiction of race-based, rather than crime-based, disparities in California’s criminal-justice system that they manufacture racial disparities where none exist. “Did you know,” asks the Prosecutors Alliance, that “more than 50 percent of people on death row are Black, Latinx, Asian, or Native American?” But those groups make up at least 61 percent of the state population, so Californians “of color” are actually underrepresented on death row.

A court ruling in April 2024, however, should alleviate left-wing worries that the reality of black crime will undermine the reach of the Racial Justice Act. Now, any judge who even hypothesizes about those crime realities can be disqualified from adjudicating Racial Justice Act motions. The San Diego Public Defenders Office had sought to prevent a San Diego Superior Court judge from hearing an RJA motion in a homicide case. The judge’s sin? In a previous prosecution, he had questioned the defense claim that blacks and Hispanics are disproportionately incarcerated—a claim based on population ratios, rather than crime commission. “There is absolutely no evidence that . . . the proportion of persons in an ethnicity committing a crime must be the same as the proportion of the population,” Judge Howard Shore had said in court. In another case, Shore had questioned whether the criminal-justice system is infected by racism.

The second-highest judge of the Superior Court of Orange County granted the Public Defenders Office’s disqualification motion. Based on Shore’s heresies, Judge Cheri Pham wrote, a person could reasonably conclude that Shore “believes certain racial or ethnic groups commit more crimes than others.” (They do.) Just as bad, Shore may not “give weight to statistical evidence that indicates there is an implicit bias against certain racial or ethnic groups.” (Fittingly, Pham earned her J.D. from the Berkeley law school.)

Knowing the truth—or at least challenging a lie—is now judicial malpractice. Any judge who is not already committed to the ideology of systemic racism is unfit to hear cases under the Racial Justice Act. Such a standard for judicial impropriety is a violation of due process and will move the legal system further into the realm of totalitarian fiction. 

Not surprisingly, the anti-law-enforcement Left is anticipating a successful run on the remaining vestiges of law and order in California. Evan Kuluk, the public defender who won the Windom suit in Contra Costa County, told the Berkeley conferees that the entire gang penal code in California was “racist”—another target for elimination on the grounds of disparate impact. Those RJA challenges will likely receive a sympathetic hearing from the California bench, which keeps churning out pro-RJA rulings. On May 2, 2024, a justice on California’s Supreme Court listed 35 black victims of alleged police racism, including Michael Brown, Freddie Gray, and George Floyd, as reason why generations of black parents have given their children “the talk” and why “attempting to avoid police officers reflects, for many [black] people, simply a desire to avoid risking injury or death.”

The one group with the most potential clout to fight the RJA is compromised. While the California District Attorneys Association singlehandedly fought RJA passage, the state’s progressive prosecutors share the RJA worldview that, in Ash Kalra’s words, “in every aspect of the justice system, there is bias.” Several such progressive prosecutors started dismantling the sentencing practices targeted by the RJA even before getting sued. Pamela Price in Alameda County (whose county seat is Oakland) has already banned almost all sentencing enhancements. Price and others are setting up Racial Justice Act units; it is not clear which side those units are on.

When such progressive district attorneys face the inevitable RJA actions, will they put up a vigorous defense, or will the lawsuits resemble the classic sweetheart suit between only nominal courtroom adversaries?

Contra Costa District Attorney Diane Becton may have celebrated Operation Windstar immediately after its conclusion, but after losing California v. Windom, she sounded almost giddy. “It really is a landmark ruling,” she said in a television interview. “The district attorney’s office recognizes that today’s ruling is one of significance for offsetting systemic racial disparities within the criminal-justice system. The court’s ruling provides direction, and my office will review similarly charged cases to promote fair and equitable prosecution.” Becton made no effort in her post–California v. Windom remarks to defend her attorneys or her office against the charge of systemic bias.      

The statistical thinking behind the Racial Justice Act will expand to other policy areas such as health care and family court. “The possibilities are endless because racism is pervasive,” Kalra told the Berkeley audience. He expects to consult with legislators in other states about passing their own Racial Justice Acts.

The fiction that all racial disparities are the result of racial bias has already compromised meritocratic standards in STEM, the legal profession, and other high-stakes endeavors. Now that that fiction has become part of California’s criminal-justice system, the determined law-enforcement work that shut down the East Bay’s Case–ENT feud will become rarer. Why should police and prosecutors try aggressively to incapacitate murderous black gangs when their efforts can be undone on the basis of tendentious statistical analyses? Unless California voters reverse the Racial Justice Act, the state is about to become more violent and the promise of equal justice under the law less credible.

Top Photo: A study by a California prosecutor found that black gang members received stiffer penalties than nonblacks—not because of racial discrimination but because they committed more heinous crimes. (Robert Nickelsberg/Getty Images)


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