![handle is hein.journals/hastlj75 and id is 1 raw text is:
Articles
Proving Actionable Racial Disparity Under the
California Racial Justice Act
COLLEEN V. CHIENt, W. DAVID BALLtt, AND WILLIAM A. SUNDSTROMttt
Racial disparity is a fact of the United States criminal justice system, but under the Supreme
Court's holding in McCleskey v. Kemp, racial disparities-even sizable, statistically signcant
disparities-do not establish an equal protection violation without a showing of purposeful
discrimination. The California Racial Justice Act (CRJA), enacted in 2020 andfurther amended
in 2022, introduced a first-of-its-kind test for actionable racial disparity even in the absence of a
showing of intent, allowing for reliefwhen the totality ofthe evidence demonstrates a signcant
difference in charging, conviction, or sentencing across racial groups when compared to those
who are similarly situated and who have engaged in similar conduct. Though the CRJA was
enacted over two years ago, two obstacles have made its promised remedies exist largely only on
paper: confusion about how to apply its new test and a lack of access to the data needed to
demonstrate a significant difference. This Article attempts to overcome these obstacles by
exploring and interpreting the significant difference test and by analyzing a database of
disparities that enables controls for criminal history and geography (similarly situated) and
overlapping elements (similar conduct) based on comprehensive data from the California
Department of Justice. This Article also presents two case studies that demonstrate how
defendants might establish an initial showing of signfcant difference sufficient to successfully
move for discovery.
t Colleen V. Chien is a Professor of Law at Berkeley Law School, faculty co-director of the Berkeley
Center for Law and Technology, and founder of the Paper Prisons Initiative.
tt W. David Ball is Professor of Law at Santa Clara University School of Law.
ttt William A. Sundstrom is the Stephen and Patricia Schott Professor of Economics of Santa Clara
University. All co-authors are affiliated with the Paper Prisons Initiative (paperprisons.org) and are equal co-
authors on this Article. The Authors thank the California Department of Justice for granting access to its data;
Santa Clara law students Ahmanda Lee, Daniel Grigore, Sarah Jabin, and Anika Kingsley and Santa Clara law
librarians Ellen Platt and Thomas DeGuzman for their exceptional research assistance; Luke Pinkston, Yangxier
Sui, and Rachel Nghe for help with bluebooking; and audiences at the AALS-ABA Academy for Justice, SW
Crim, and Santa Clara Law faculty workshops for their helpful comments on earlier drafts. Pending authorization
from the California Department of Justice, a Paper Prisons RJA database that provides access to data on racial
disparities across California counties will be made available at www.paperprisons.org/RJA. Please send any
correspondence related to this Article to: Colleen V. Chien at cchien@berkeley.edu.
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