RIVERSIDE, Calif. — Two people facing capital charges in Riverside County are using the novel California Racial Justice Act (CRJA) to challenge prosecutors’ decision to seek the death penalty.

A judge will hear arguments today about whether to order a testimonial hearing based on the written pleadings in the cases of Russell Austin and Michael Mosby.

Passed in 2020, the CRJA is intended to eliminate racial and ethnic bias in charging, convictions, and sentencing in the state's criminal legal system. Significantly, the CRJA permits people to use statistical evidence of racial disparities in charging, convictions, and sentencing decisions to challenge the pursuit of capital charges in their case.

“Racial discrimination is created and entrenched over many generations and infects entire systems,” said Robert Ponce, a legal fellow with the American Civil Liberties Union Capital Punishment Project and the ACLU Foundation of Southern California. “Racial discrimination doesn’t always present itself as a single ‘smoking gun’ instance in a particular person’s trial. The California Racial Justice Act and these legal challenges recognize that racial discrimination in charging, conviction, and sentencing decisions is a systemic problem that requires a systemic analysis and a systemic solution.”

The CRJA allows a challenge to the administration of the death penalty, which the U.S. Supreme Court had previously closed in its McKleskey v. Kemp decision. In that case, the court ruled a person could only challenge the death penalty on constitutional grounds by showing overt racial bias in their trial, not by pointing to evidence of racial disparities for members of their race in the administration of the death penalty.

In their filings, attorneys for Mr. Austin and Mr. Mosby — both of whom are Black — provide statistical evidence from three scholars and a historical overview demonstrating the long history of racial discrimination in California broadly, and Riverside County specifically.

One of the studies finds that almost a third of those with capital charges in Riverside County are Black, even though Black adults comprise 6.3 percent of Riverside County residents.

For the last decade, Riverside County has been one of the most prolific death-sentencing counties in the nation. From 2015 to 2019, Riverside County accounted for over a third of California’s death sentences — while only accounting for six percent of the state’s population. Eighty-eight people presently on California’s death row were sentenced in Riverside County, and three quarters of them are people of color.

“The question is not about whether a particular person is racist, but whether a system has created racially disparate outcomes,” said Claudia Van Wyk, senior staff attorney with the ACLU’s Capital Punishment Project. “If we want to create a legal system that upholds principles of equal protection and fairness, then we must assess the individual defendant’s case within the context of that systemic analysis. This is what the California Racial Justice Act allows us to do.”

Mr. Mosby and Mr. Austin are represented by David Macher, Brian Cosgrove, Richard Briones-Colman, and Linda Gail Moore of the Riverside Public Defenders Office. The ACLU’s Capital Punishment Project and the ACLU Foundation of Southern California are co-counsel.

 

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