Top Stories

In California, as in the country as a whole, statistics on racial disparities in the criminal legal system are stark.

“Black Californians are nearly three times as likely to have an arrest record as White Californians, four times as likely to have at least one felony conviction, and six times as likely to have received at least one incarceration sentence,” according to the authors of the new paper “Proving Actionable Racial Disparity Under the California Racial Justice Act,” published in December 2023 in the UC Law Journal.

Those disparities lead to tricky questions, according to Leavey School of Business economist Bill Sundstrom, one of the paper’s coauthors. First, are bias and discrimination in the criminal legal system partially to blame for these drastically different outcomes? Second — and more challenging — how can defendants and the people representing them prove it in court?

These questions are not new. However, scholars are looking at them with fresh eyes because of the California Racial Justice Act (CRJA), which passed in 2020 and was amended in 2022. Before that act, Sundstrom had already been collaborating on research with coauthor Colleen Chien, professor of law at Berkeley Law and a former professor at Santa Clara. The two had examined issues such as second-chance employment for people who had previously been incarcerated or had criminal records.

“We got really interested in the CRJA,” Sundstrom says. “The implications is that it invites — in a way for the first time — serious use of statistical evidence in bringing claims of racial disparities.” 

Sundstrom brought his expertise in data analytics. Chien added her ability to apply those analytics to legal and policy questions. The two of them added a third collaborator from Santa Clara, law professor David Ball, because of this expertise in criminal law.

In the paper, the researchers provide a deep dive into the language and intent of the CRJA, and how it differs from past law. They also provide data analysis about the racial disparities in the California legal system. Perhaps most important, they walk through case studies and information on how people might use those numbers to make a case in court.

Statistics and Specifics

Since 1987, racial disparity cases have been ruled by the precedent of McCleskey v. Kemp, a Supreme Court case. In that case, the court essentially ruled that statistical evidence of racial disparities was not enough to overturn a particular sentence. Racial disparities are inevitable in our system, according to the majority opinion. 

The CRJA directly challenges that, at least in California. According to the article, it allows for broader categories of evidence, both statistical analysis and contextual evidence specific to individual cases. It also allows for claimants to point out disparities at every phase of the legal process, from charging to conviction to sentencing.

The challenge? The CRJA is a relatively new law, and people are still figuring out how to use it. Only a “trickle” of cases have been seen so far, the authors write.

“Our sense is that our work is going to be most useful as an entry point,” Sundstrom says. “It’s going to be a way to use this aggregate statistical data to get a case into discovery.”

In other words, defense attorneys, defendants or other interested parties can start with the statistics, then move into the specifics of their particular case. For example, a lawyer working in a particular county might use data that show Black defendants are charged at a significantly higher rate than their white counterparts for the same crime in their county. 

If that high-level statistical evidence is enough to pursue a case, discovery comes next. In the discovery phase, specific context and conduct matter. What was the defendant’s conduct, and how did it compare with similar cases? In turn, what was the outcome in terms of charging or sentencing, and how did that compare with similar cases? Was racially charged language used in the court? 

Ultimately, cases rely on a mix of statistical patterns and specific factors or behavior.

“We focus on discovery in this Article because discovery provides a way to obtain the evidence the McCleskey court said an individual needed to support an equal protection claim,” Sundstrom and his coauthors write. “Statistics show smoke; discovery shows how the fire started.”

A Tool for Future Work

Sundstrom acknowledges challenges in performing and using this sort of data analysis. 

For one thing, despite the fact that every single county in California shows statistical disparities for people of color, the sample sizes become difficult to work with for the state’s smallest counties for certain offenses or smaller communities of color. If the number of cases involved is in the single digits or teens, there’s not a lot of value to be found in the data.

“That's a thing we're grappling with now and looking to solve,” Sundstrom says. “What can we do to either aggregate together small counties, or different offenses that are pretty similar to each other, to get enough of a sample size to say something meaningful.” 

The other challenge is creating guidance that is both useful and easy to understand. The research team wants to provide that guidance for practitioners working in this space, so they’re in the process of developing a public-facing website to house aggregate data and analysis, working with approval from the California Department of Justice. A demo of the tool is currently available, and the team hopes to roll the full version out this year.

“This tool could be used by people trying to bring claims, public defenders, and other attorneys, Sundstrom says. “Also, presumably anybody else who is just interested in fact-checking some of the information about racial disparities in our system.”