By Robert Ponce, ACLU Legal Fellow, Capital Punishment Project and ACLU of Southern California 

Long before I joined the ACLU, I was just a skinny brown kid who grew up in the “Inland Empire” — a region of Southern California that includes 52 cities spread across Riverside and San Bernardino Counties. Even when I’ve moved away at different points of my life, the Inland Empire has always been a place that I’ve called home.

However, my younger self could never have imagined that the same field I played club soccer on at Riverside Poly High School was used for a Ku Klux Klan recruitment and cross-burning event less than a century earlier. I was unaware that I attended my high school homecoming a few streets down from where “The Birth of a Nation” — a horribly racist film that glorified the lynchings of Black Americans — once hosted its world debut at the Loring Opera House. Even as of a few months ago, I didn’t know that Riverside’s Hall of Justice sits fewer than two miles from where Lowell Elementary School — which primarily educated Black and Latinx students — was firebombed and destroyed during desegregation protests in 1965.

These are facts I learned about my home as a legal fellow with the ACLU. I am part of a team of attorneys who are bringing the first challenge to death penalty prosecutions under the landmark law known as the California Racial Justice Act (CRJA). We represent two Black men, Russell Austin and Michael Mosby, each of whom face the death penalty in Riverside County — one of the most prolific death-sentencing counties in the nation. Today, a Riverside Superior Court judge will determine whether our two clients will receive an evidentiary hearing under the CRJA. At an evidentiary hearing, we will introduce evidence to prove that our clients received unequal treatment compared to white people with similar cases and will argue that they should therefore be deemed ineligible for the death penalty.

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The CRJA has an ambitious goal: rooting out racism from the criminal legal system. This law allows defendants to challenge more surreptitious forms of implicit and institutional racism in their cases.

It’s important to underline just how significant the CRJA is. The Supreme Court decision in McCleskey v. Kemp closed off constitutional challenges that rely on showing the racist application of the death penalty. Instead, the court required a condemned person to prove that “the decisionmakers in his case acted with discriminatory purpose.” Otherwise, the court infamously said, a theory like Mr. McCleskey’s could open the entire criminal legal system to constitutional challenge for its racist operation. In his dissent, Justice William Brennan said such a concern exhibited a “fear of too much justice.” The CRJA takes direct aim at the court’s decision in McCleskey by allowing people to challenge racism in all forms — explicit, implicit, and structural — in the administration of the criminal legal system, without requiring them to take on the added burden of showing intent in their own cases.

Enabled by the CRJA, Mr. Austin and Mr. Mosby have introduced four statistical analyses from three scholars that reach the same conclusion: Riverside’s death penalty system more severely punishes Black people than any other racial group.

At each step of prosecutorial decision-making in Riverside County, Black defendants are on average treated more harshly than any other racial or ethnic group. In fact, one analysis found that Black defendants in Riverside are approximately nine times more likely to have the prosecution seek death and 14 times more likely to have death sentences imposed against them than white defendants whose cases are similar. Just as significant is the way that Riverside prosecutors have avoided seeking death sentences in homicide cases with Black victims. Cases with Black victims are 61 percent less likely to result in a death sentence than cases with white victims.

While these statistics are in themselves striking, they tell only a partial story of Riverside’s death penalty system. When the California legislature developed the CRJA, it acknowledged that in order to develop a truly fair and equitable criminal legal system, we have to be willing to understand how and why systems functioned unfairly and inequitably in the first place. In short, the CRJA stands for the notion that our criminal legal system’s past is inseparable from our criminal legal system’s present.

To help the court better understand the development and operation of Riverside’s unjust and racist capital punishment system, Mr. Austin and Mr. Mosby also introduced historical evidence that demonstrates a clear, cross-generational record of state-sponsored maltreatment and vigilante violence exacted against Black people in Riverside County.

Historical accounts show that proud members of the Ku Klux Klan (KKK) and KKK-endorsed candidates once dominated Riverside’s local law enforcement and government offices. In positions of immense local influence, local government officials reinforced institutional segregation and designed an intricate system of oppression that harmed non-white Riverside residents throughout the 20th century. Even once legally sanctioned segregation was in the rearview, segregation continued, and more covert forms of racial and discrimination persisted in Riverside.

From the mid- to late-20th centuries, law enforcement raids brought terror into Black neighborhoods in Riverside. Even over the last few decades, Riverside law enforcement officials have faced several national controversies for killing and assaulting Black and Latinx people. The Riverside County District Attorney’s Office has time and again demonstrated an unwillingness to protect the lives of people of color by failing to seek criminal prosecutions of county officers for shooting unarmed victims.

Today, the Inland Empire’s law enforcement and criminal legal systems — which remain sources of immense distrust for many Black residents — disproportionately impose the death penalty against Black people. California’s death row population — the largest in the country — includes 127 people sentenced to death in Riverside and San Bernardino counties. Nearly three quarters of those were people of color, including 43 Black people (roughly 34 percent).

We can’t tell an honest story about the Inland Empire — and we can’t understand how our criminal legal system operates — unless we include the violence and discrimination suffered by Black, Latinx, Asian, and Indigenous people here.

If the far-reaching potential impact of the CRJA is to be realized, our courts must acknowledge that no form of racism, overt or covert, is legally acceptable. People in the Inland Empire — Mr. Austin and Mr. Mosby included — deserve an accessible legal system that takes responsibility for our society’s past failures and advances the creative solutions of the CRJA to build a more just, equitable future. Our legal system and its actors cannot be afraid of too much justice.

By April Corbin Girnus, Nevada Current
This article was originally published by the Nevada Current.

A new report praises the Nevada State Legislature for expanding voter access and improving its election system, saying that in 2021 the state “managed to pass nearly every pro-voter improvement it could have.”

The Institute for Responsive Government in a report released Wednesday analyzed legislative efforts over the past two years to determine which states were making “pro-voter progress.” Representatives from IRG emphasized that their report is not a ranking of overall election procedures across all states but instead takes into consideration where each state was prior to recent legislative efforts.

Nevada was one of four legislatures to receive an “A” grade. Colorado, Delaware and Washington DC also earned the top grade.

Sam Oliker-Friedland, executive director of the Institute for Responsive Government, during a digital press event highlighted Nevada for implementing “larger, more prominent reforms” — specifically the move to mail ballots being automatically distributed to all active registered voters, as well as improving its automatic voter registration system.

The move to universal mail ballots was first passed in 2020 during an emergency special legislative session. It occurred at the urging of county elected officials who believed vote-by-mail was the best way to conduct a general election amid a pandemic. During the 2021 legislative session, the emergency procedures were made permanent.

Oliker-Friedland acknowledged that Democrats in Nevada passed both laws without any support from their Republican counterparts. But he added that lawmakers in the Silver State did come together to support less controversial election reforms. Specifically, there was unanimous bipartisan support to authorize the creation of a statewide voter registration database.

Nevada is one of the few states without a statewide voter registration database and currently relies on individual county databases — something election officials say is inefficient and cumbersome.

“I don’t know of an election director or local election official in the country that doesn’t have a list of minor, uncontroversial things that could be fixed in the code that would make their lives better,” added Oliker-Friedland. “That’s a great opportunity to come together — even where you’re super far apart on the big things, come together to fix the little things that we can all agree on to make the system more secure and more efficient, and in many cases even improve voter access through these minor changes.”

Research into the impact of expanding voter access has found that neither party is the clear beneficiary of reforms. Despite this, expanding voter access — or on the flip side “improving election integrity” — is increasingly debated within a partisan narrative.

“The data does not show that increasing vote by mail, increasing early voting days (or) improving voter registration procedures favors one party or another,” said Trey Grayson, a former secretary of state of Kentucky who advised IRG.

Grayson, a Republican, pointed out that Kentucky, which received a A- grade in the report, made it easier for voters to cast ballots and saw better outcomes for Republicans. (Senate Minority Leader Mitch McConnell and Sen. Rand Paul, for example, won by their widest margin ever.) Meanwhile, Colorado, which received an A grade in the report, has trended more blue since election reforms.

“We can cherry pick both sides but it’s pretty clear there’s not a partisan divide here,” said Grayson. “It ought to be ‘Let’s make it work better.’ Because we make elections operate more efficiently, and more securely, and frankly probably even cheaper, if we just work together. And the voters will be the winners.”

Will more reforms come?

Since the 2021 Legislative Session, Democrats have lost control of their trifecta in Carson City, making the possibility of additional election reforms less certain.

Republican Gov. Joe Lombardo, who unseated Democrat Steve Sisolak, last year on the campaign trail promised to introduce an “Election Integrity Reform Package” to establish voter identification requirements and “eliminate ballot harvesting, end universal mail ballots, and create a bipartisan panel to oversee our elections system.” 

The governor’s office did not respond to the Current’s request for additional details or comment.

Democratic Secretary of State Cisco Aguilar, who defeated a virulent election denier in the 2022 midterms, on the campaign trail said his first legislative priority would be to introduce a bill to criminalize attacks against election workers.

On Wednesday he confirmed that one of his office’s eight BDRs would make it a felony to threaten election officials and workers.

An additional five election-related BDRs from his office will “cover more improvements to the current system,” according to a spokesperson.

“Nevada runs some of the best elections in the nation and it’s great to see the hard work of our election workers and legislators recognized,” read a statement provided to the Current. “We won’t stop here – we’re working with lawmakers ahead of the legislative session to continue implementing bipartisan initiatives to improve our elections system, including legislation to protect our election workers who are so vital to our success.”

More than two dozen other bill draft requests relating to elections have already been filed ahead of the 2023 Legislative Session, which begins Feb. 6. Specifics for most of the BDRs are not yet publicly available.

One proposal, Senate Bill 54, sponsored by the senate committee on legislative operations and elections requires the secretary of state to prepare, maintain and publish an elections procedure manual and requires county and city clerks to comply with the manual. Another, Senate Bill 60, also sponsored by the senate committee, addresses numerous election procedures, including those related to filing for a nonpartisan office and ballot counting procedures used by counties.

Nye County became Nevada’s poster child for electoral dysfunction last year after its top election official first vowed they would hand count ballots, then pivoted to a messy, mostly performative hand count after being shut down by then-Secretary of State Barbara Cegavske and losing a lawsuit brought by the ACLU of Nevada.

Emily Persaud-Zamora, executive director of the civic engagement group Silver State Voices, said she sees areas for “potential clean up” of existing election law within Nevada.

She declined to elaborate on any specific legislation SSV will be lobbying for during the upcoming session, but she did note the group opposes voter-id laws on the grounds they suppress voters from vulnerable communities.

Persaud-Zamora said all of SSV’s policy positions are informed not by partisan outcomes but by the group’s experiences running ‘get out the vote’ campaigns and monitoring voter issues on the ‘election protection’ hotline.

“The political power has changed but we still have the mentality that voting rights is a nonpartisan issue,” she added. “We don’t subscribe to political rhetoric. We don’t see why any of the changes that we could potentially make should not be something that Democrats and Republicans can support.”