This past May marked four years since the killing of George Floyd and the largest social uprisings in the history of the country that marched, rallied, and collectively mourned in the streets in the wake of his murder. 2020 became a year of reckoning, when cities, counties, and business as usual was stopped and forced to confront racial injustice that expressed itself through police violence and a criminal legal system that targeted, harmed, and killed Black and brown communities.
In Santa Clara County, local officials and law enforcement administrators responded quickly with public proclamations both acknowledging the existence of racial bias, as well as declaring policy reforms to address them.
District Attorney Rosen, in particular, as the top law enforcement official in the county, wrote and made media statements about the role and culpability of prosecutors in both contributing to the racial disparities in the carceral system, and the requirement of his office to address issues of systemic racism.
In an editorial published in the Mercury News in 2020 entitled, “What Will We Do When the Floyd Protests Die Down?” District Attorney Rosen wrote, “without equality, without basic fairness, then the justice system stops serving the public good and merely channels power and revenge. Every year we put out a report on Race and Prosecutions. Every year it shows racial disproportion in our system.” The writing carried the tone of an impassioned civil rights leader, even down to the call and response questions that may have been belted with a megaphone at a march or rally. After contending that prayer, disgust at racism is not enough, he asked, “What will we do about it? What have we done?”
That same year, the state legislature and Governor were similarly moved to respond to the ground up call to act - signing into law the Racial Justice Act (authored by San Jose Assembly Member Kalra). In many ways, it was a legislative answer to DA Rosen’s seemingly rhetorical questions about what a DA office could do to address racial bias in the system.
The Racial Justice Act, Assembly Bill 2542, lets people charged with a crime raise issues of bias or discrimination based on race, ethnicity, or national origin in their cases. In 2023, Assembly Bill 256 - the Racial Justice Act for All - made the law retroactively applicable, so those who have been convicted and sentenced could also seek remedies based on the same issues.
The Racial Justice Act (RJA) is a straightforward yet historically profound call to court actors - address bias and discrimination when it exhibits in the life span of a case from arrest to sentencing. It is a device to raise and confront, case by case in a courtroom setting, the insidious truth that racism has and does pervade the criminal legal system, fueling a mass incarceration epidemic that disproportionately devastated Black and brown communities.
In Santa Clara County, for decades, as a result of bias and discrimination being ignored in the court process, racial and ethnic minorities have been dramatically overrepresented in arrests, prosecutions, and jail and prison sentences. Studies from recent years, including those conducted by the Santa Clara County District Attorney’s Office, have shown that Latina/o/x residents are consistently overrepresented in the county jail by nearly two-fold, and Black residents are overrepresented by nearly four-fold compared to their percentage in the county overall. The arrest rate of Black people has consistently remained 5 times that of white people in Santa Clara County for decades.
Yet despite the appearing harmony in the rhetoric from DA Rosen shortly after the George Floyd protests and the purpose of the Racial Justice Act that seemed to have the same aim- the Santa Clara County District Attorney’s Office has vehemently opposed every single RJA claim (called Penal Code Section 745) brought to them by defense attorneys on behalf of community members.
And even more alarming, in a recent motion for a case regarding an elderly Black woman who brought an RJA claim against the arresting officers, the Santa Clara County District Attorney’s Office has expanded its approach to attack the Racial Justice Act itself.
Racial justice advocates from across the Bay Area court watch RJA hearings in Santa Clara County to show the judge and the prosecutor the community is in the building.
The District Attorney argues that the RJA, in calling on the acknowledgement of bias, including implicit bias, and its impact on people of color - victimizes them - the District Attorney’s Office. A motion submitted on behalf of DA Rosen states, “If the court adopts Defendant’s proposed scope of bias, where an exhibition may be premised merely on unconscious or implicit bias, then section 745 violates the People’s right to due process.”
The argument contradicts the complicity of system actors DA Rosen wrote about in his Race and Prosecution report published the year of George Floyd’s murder. In his 2020 report he states, “Prosecutors, police officers, and, of course, this District Attorney need to ask ourselves if we are a part—intentionally or not—in these destructive and despicable racial injustices.”
The key phrase in his statement, and how it maps directly onto the main feature of the RJA law is, “intentional or not.” It is an acknowledgment that “implicit bias” is as much a dangerous form of racism as “explicit bias.”
The very language of the RJA affirms the understanding of the impact of unconscious bias in the court system stating, “Implicit bias, although often unintentional and unconscious, may inject racism and unfairness into proceedings similar to intentional bias.”
In the same motion in which they claim unconscious racial bias is beyond the scope of redress, the DA’s office argues that the RJA imposes “adverse consequences” on the District Attorney’s Office for an unconscious bias exhibited by law enforcement. They go on to cry out, “The People may lose their ability to seek certain sentences, allegations, or a criminal conviction altogether.”
It is a bizarre argument, particularly given that in terms of the remedy in cases of bias, the RJA could not have been more clear, stating, “The intent of the Legislature is not to punish this type of bias, but rather to remedy the harm to the defendant’s case and to the integrity of the judicial system.”
The DA’s position reflects a remarkable perversion of the daily reality and interplay of power, rights, and race in Santa Clara County. In the face of a case of an elderly Black woman facing the possibility of being put in a cage by the prosecutor, the Santa Clara District Attorney Office - the most powerful law enforcement office in the County - cries victim, that her challenging of racial injustice violates their rights as a prosecuting agency.
But beyond the detached gamesmanship of prosecutors simply trying to come up with a novel argument to win a singular case - the DA’s attack on the Racial Justice Act and its very purpose, has much larger, and dangerous, implications.
It means that despite the progressive branding of the District Attorney’s Office delivered through public proclamations and media messaging after the George Floyd protests, they have decided to use their institutional resources and position to maintain, protect, and advance the practices of racial injustice exhibited in Santa Clara County that they claim to abhor.
This is an institution that everyday decides which community members should be charged with a crime or not. They decide what potential prison or jail sentences a community may face when charged. This is the institution that determines whether police who hurt or kill community members should be held criminally liable.
DA Rosen, still associating with a civil rights motif, announced policy aims titled after a speech given by a racial justice icon. He said, “We call this effort, ‘Bend the Arc.’ The phrase – taken from a 1965 Martin Luther King, Jr. speech in which he said - ‘The arc of the moral universe is long, but it bends toward justice’ – has become a guiding light in this DA’s Office. It gives us a powerful reminder that we can’t just sit back and wait and hope that justice happens. It won’t. We have to actively, purposely, and intentionally seek justice and pursue justice to achieve justice.”
Four years after the death of George Floyd, of the Santa Clara District Attorney’s calls to action, and the passage of the Racial Justice Act simultaneously created from the very same boiling political cauldron of racial reckoning, Santa Clara County finds itself pointed in the wrong direction of the arc of justice.
DA Rosen’s 2024 actions are the answer to the question in 2020 in that editorial, “What Will We Do After the Protests Die Down?” Their answer is to challenge and undermine a vehicle create to address racial disparities.
It is not just that the Santa Clara County District Attorney’ Office is incongruent to the Racial Justice Act and its call to challenge racial bias, it is that the DA’s office attacks are antithetical to the very idea of racial justice. They are “actively, purposely, and intentionally” opposing the fight and call for racial justice in Santa Clara County.
