Fruit of the Racist Tree: A Super-Exclusionary Rule for Racist Policing Under California’s Racial Justice Act
abstract. This Comment explores a novel legal remedy for demonstrated racial bias or animus in police investigations presented in the recently enacted California Racial Justice Act (RJA) of 2020. The Comment contends that the California RJA, in attempting to address racism throughout the state’s criminal justice system, establishes a “super-exclusionary rule” that affords relief from criminal punishments to people convicted following racist police conduct or practices. The Comment then examines the wide-ranging implications of such a rule for individuals facing criminal punishments, police and prosecutor policy, and public understanding of the racialized harms that policing can inflict. In doing so, this Comment argues that the super-exclusionary rule presents new mechanisms for police accountability and a vision for how a state might give substance to a full commitment to combatting racism in policing.
author. Yale Law School, J.D. expected 2022. My foremost thanks go to Monica C. Bell, without whom this Comment would have never seen the light of day. I am grateful to Miriam Gohara and James Forman Jr. for building spaces that shaped and sharpened my approach to this piece. I would also like to thank the members of the Spring 2021 Race, Inequality, and the Law seminar for their energy, encouragement, and commiseration; Lisa Romo, Natasha Minsker, and Miriam Baer for their guidance and invaluable insights; and Emily Lau, Eleanor Roberts, Rachael Stryer, Ashley Taylor, my parents, and everyone else who has patiently withstood my gripes and worries and supported me nonetheless. Finally, my gratitude to Prashanta Augustine and the thoughtful editors at the Yale Law Journal. I dedicate this Comment to the activists and advocates who made it possible to enact the Racial Justice Act and to their vision of a more just, more equitable California.
The firestorm of protests for racial justice that took place across the United States following George Floyd’s murder by police swept through California with no less fervor, from the state’s small towns to its major cities.1 Passed in the wake of these protests, the California Racial Justice Act (RJA) of 2020 announced the state’s goal of addressing racism throughout its criminal justice system.2 Included in the statute, but largely overlooked by supporters and detractors alike, is language that prohibits law enforcement officers from exhibiting racial bias or animus during a criminal case.
These little-heralded provisions related to law enforcement represent a novel and significant legal approach to deter and redress police racism. The California RJA provides the legal framework for what this Comment terms a “super-exclusionary rule” that, in effect, jeopardizes all charges, convictions, and sentences obtained subsequent to racist policing. Like the Fourth Amendment exclusionary rule, the super-exclusionary rule employs the formal criminal adjudication process to deter unwanted police behavior, but with far greater reach. If applied as proposed here, the super-exclusionary rule could secure permanent relief from criminal penalties for people of color and force substantial shifts in police behavior. Beyond its initial impact within the state, the rule’s wider implications extend into national conversations on racism and policing, as well as the reverberations of each throughout the criminal legal system.
Part I of this Comment summarizes the intent behind and the structure of the California RJA. Using the Fourth Amendment exclusionary rule as a conceptual foil, Part II introduces the California RJA’s super-exclusionary rule and argues that it represents an unprecedented legal remedy for police racism. Part III explores possible applications of the super-exclusionary rule and its potential to ameliorate racialized harms that the criminal legal system inflicts on people of color. In laying out the rule’s operation and implications, this Comment calls for an imaginative and expansive approach not only to the California RJA, but also to conceptions of racist policing itself.